Tentative Rulings

Case Number: BC702410    Hearing Date: December 24, 2019    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Background

Plaintiff Christine Naone (“Plaintiff”) commenced this lemon law action on April 17, 2018 against Puente Hills Hyundai, LLC dba Puente Hills Hyundai (“Dealership”), Hyundai Motor America (“HMA”), and Hyundai Capital America (“HCA”; collectively “Defendants”) for violation of the Song-Beverly Consumer Warranty Act, deceit, negligent misrepresentation and violation of Business and Professions Code section 17200 et seq.

The parties have filed separate motions that were set for a hearing on December 24, 2019.

Plaintiff filed a Motion to Compel Further Responses to Requests for Production (“RPDs”) on June 14, 2019, and the initial hearing on the motion was held on November 26, 2019. Following the hearing, the parties were ordered to provide supplemental briefing as to Requests for Production 5, 6, and 41 dealing with a turbocharging issue in the Subject Vehicle.

On April 19, 2019, Defendant HMA filed the instant Motion to Compel Further Responses to a Request for Inspection and Repair of the Subject Vehicle. Plaintiff opposed the motion on December 11, 2019, and Defendant replied on December 17, 2019.

Legal Standard

Under CCP section 2031.310, on receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

(1) A statement of compliance with the demand is incomplete.

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

(3) An objection in the response is without merit or too general.

Discussion

1. Plaintiff’s Motion to Compel Further Responses to RPDs 5, 6, and 41

In her supplemental briefing, Plaintiff cites to authorities that support her contention that the scope of discovery is not limited to the allegations of the current operative complaint. Plaintiff has advanced these arguments in favor of granting RPDs 5, 6, and 41, which relate to documents and research regarding the turbocharger system in the Hyundai Tucson vehicle.

Defendant argues that the turbocharger issue is irrelevant for discovery purposes because 1) it did not exist at the time Plaintiff commenced the action and 2) Plaintiff failed to allege the issue in the FAC. (Def.’s Further Opp., p. 3.)

The Court finds that the authorities cited support the proposition that discovery is broad in scope and should be allowed as long as it is relevant to the subject matter of the action. (Plaintiff’s Supp. Brief, p. 2; emphasis added.) Further, the Court notes that the purpose of discovery is to help the parties evaluate their case. For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal. App. 4^th 1539, 1546.) Admissibility is not the test, and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. (Id.) These rules are applied liberally in favor of discovery and, contrary to popular belief, fishing expeditions are permissible in some cases. (Id.)

As discussed below in addressing Defendant’s motion, the turbocharging system is associated with the transmission and is within the subject matter of the instant lemon law action. In light of the authorities provided by Plaintiff, and the liberal approach in favor of allowing discovery, the Court finds that the information sought in RPDs 5, 6, and 41 is reasonably designed to assist Plaintiff in evaluating her case, preparing for trial, or facilitating settlement. (Gonzalez at 1546.) For example, under California Rule of Court 3.1324, Plaintiff may file an amended complaint upon discovery of facts giving rise to amended allegations. Thus, the information sought is relevant because Plaintiff may discern whether the turbocharger issue possibly existed at the time she commenced the action, especially upon review of the diagnostic code documents, and the information may reasonably assist Plaintiff in evaluating the value of all her claims, including her potential claims relating to the turbocharging system, which have not been alleged.

However, as previously stated in the Court’s Order on November 26, 2019, the requests are not limited in time. Defendant is ordered to produce documents sought in RPDs 5, 6, and 41 from the date the subject vehicle was purchased or leased to the date the lawsuit was filed.

The Court notes that if it is indeed true that Defendant is unable to comply because it does not possess the documents that fall within the category of these requests, Defendant must so indicate in the form of verified responses that comply with CCP § 2031.230.

Attorney Client Privilege

Defendant has objected to the RPDs with a blanket objection that Plaintiff seeks information protected by attorney-client privilege. On their face, the RPDs do not appear to implicate attorney-client privilege. As explained in the Court’s order on November 26, 2019, Defendant fails to sufficiently explain how the information sought is protected by attorney-client privilege. The Court thus ordered Defendant to meet and confer telephonically or in person with Plaintiff no later than December 19, 2019 regarding the documents that Defendant has withheld on the basis of attorney-client privilege and the privilege log. The Court also ordered the parties to file a joint statement identifying, item by item, any remaining disputes regarding the documents that Defendant has withheld on the basis of attorney-client privilege and the privilege log. Upon review, Defendant has not demonstrated that the parties met and conferred as to these objections. Nor have the parties filed any joint statement. Although provided with a further opportunity to do so, Defendant has failed to provide any justification to elucidate the connection between the RPDs and attorney-client privilege. Accordingly, the Court declines to deny the RPDs on this ground.

1. Defendant’s Motion to Compel Repair and Inspection

Defendant seeks an order compelling Plaintiff to allow for a repair of the turbocharging system on the Subject Vehicle in order to enable Defendant to complete a vehicle inspection. Prior to the commencement of the action, Plaintiff presented the Subject Vehicle to Puente Hills Hyundai on two separate occasions during which the dealership did not identify any issue. Plaintiff alleges that in July of 2018 – after commencement of this action -- the Subject Vehicle experienced a “loss of power and acceleration,” which Plaintiff describes as “separate and distinct” from the initial issue that was attributed to the transmission. (Def.’s Sep. Statement, p. 3.) Subsequently, on March 5, 2019, Defendant attempted to conduct a vehicle inspection and discovered that the loss of power and acceleration experienced in July of 2018 was attributable to a turbocharger malfunction. (Id.) Defendant contends that in order to test the acceleration issue alleged in Plaintiff’s FAC, Defendant must first be permitted to repair the turbocharging system to enable the vehicle to operate at a higher speed.

Meet and Confer

The Court finds that the parties have complied with the meet and confer requirements prior to filing the instant motion. (Aliviado Decl., ¶¶ 9-10.)

Request for Repair and Further Inspection

The Court finds that Defendant is not entitled to an order compelling Plaintiff to allow Defendant to repair and further inspect the Subject Vehicle for the purpose of testing the transmission at a higher speed. Defendant correctly notes that the language of CCP section 2017.010 does permit discovery as to the “nature” and “condition” of any tangible thing. (Def.’s Mot., p. 6.) However, a compelled repair of the vehicle, which would change the condition of the vehicle, does not fall within the scope of a request for further inspection. The fact that the turbocharging system issue has surfaced after commencement of the action does not create a right for Defendant to conduct repairs to which Plaintiff does not consent.

In the context of an inspection demand, CCP section 2031.010, subdivision (c) states that a party may demand any other party to produce and permit the party to “inspect and to photograph, test, or sample any tangible things that are in the possession, custody, or control of the party on whom the demand is made.” Notably, the statute does not contain any provision allowing for the alteration or repair of tangible things. Nothing in the statute authorizes a party to alter the condition of the evidence inspected. Here, compelling the repair seems particularly improper where Plaintiff is contemplating amending to add a claim for the turbocharging system defect. Finally, the Court notes that it would be impractical to order a repair of certain parts of the Subject Vehicle while ensuring that other parts are not repaired or altered as well. If Defendant seeks to inspect the Subject Vehicle a second time without making repairs, the parties may meet and confer for that purpose.

CONCLUSIONS AND ORDER

Plaintiff’s Motion to Compel Further Responses to RPD numbers 5, 6, and 41 is GRANTED IN PART as follows: Defendant is ordered to produce within 20 days verified, further responses and documents sought in RPD 41, without objection, from the date the Subject Vehicle was purchased or leased to the date the lawsuit was filed. Defendant is ordered to produce within 20 days verified, further responses, without objection, to RPDs 5 and 6 limited in scope to documents specifically for vehicles in California of the same year, make, and model as the Subject Vehicle. Subject to the Court’s order on November 26, 2019, Plaintiff’s Motion to Compel Further Responses to RPDs is otherwise denied.

Defendant’s Motion to Compel Further Responses to Requests for Inspection and Repair is DENIED.

Plaintiff is ordered to provide notice of this order and file proof of service of such.

DATED: December 24, 2019 ___________________________

Elaine Lu

Judge of the Superior Court

Case Number: BC702410    Hearing Date: November 26, 2019    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Background

Plaintiff Christine Naone (“Plaintiff”) commenced this lemon law action on April 17, 2018 against Puente Hills Hyundai, LLC dba Puente Hills Hyundai (“Dealership”), Hyundai Motor America (“HMA”), and Hyundai Capital America (“HCA”; collectively “Defendants”) for violation of the Song-Beverly Consumer Warranty Act, deceit, negligent misrepresentation and violation of Business and Professions Code section 17200 et seq.

On June 14, 2019, Plaintiff filed the instant motion to compel further responses to requests for production (“RPDs”) from Defendant HMA. Defendant HMA opposed the motion on November 13, 2019. Plaintiff filed a reply on November 19, 2019.

Plaintiff argues that Defendant has either objected unreasonably or failed to provide verified and compliant responses to RPDs 1 through 28, 36 through 38, and 41 through 42.

Legal Standard

Under CCP section 2031.310, on receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

(1) A statement of compliance with the demand is incomplete.

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

(3) An objection in the response is without merit or too general.

Evidentiary Objections

In its Opposition papers, Defendant submitted objections to the Declaration of David Allan Cooper filed in support of Plaintiff’s instant motion. The court rules as follows:

Objection 1 to Cooper Declaration ¶ 3: OVERRULED – Cooper has a sufficient foundation for his statements.

Objection 2 – 6 to Cooper Decl. ¶¶ 4-8 and Exhibits C, D, E, F, G: OVERRULED – Cooper has sufficient personal knowledge to the state the facts that are subject to these objections and sufficiently authenticates the documents in the exhibits.

Objection 7 to Cooper Decl. ¶ 9 and Exhibit H: OVERRULED – Cooper has sufficient personal knowledge to the state the facts that are subject to these objections and sufficiently authenticates the documents in the exhibits, which are relevant to the present action.

Objection 8 to Cooper Decl. ¶ 10 and Exhibit I: OVERRULED – Cooper has sufficient personal knowledge to the state the facts that are subject to these objections and sufficiently authenticates the documents in the exhibit, which are already part of the record in the present action.

Objections 9 –10 to Cooper Decl. ¶¶ 11- 12 and Exhibits J, K: OVERRULED - Cooper has sufficient personal knowledge to the state the facts that are subject to these objections and sufficiently authenticates the documents in the exhibits.

Objections 11-12 to Cooper Decl. ¶¶ 13, 15 and Exhibit L: OVERRULED – Cooper has sufficient personal knowledge to the state the facts that are subject to these objections and sufficiently authenticates the documents in the exhibit.

Discussion

On April 9, 2019, Plaintiff propounded discovery on Defendant. (Cooper Decl. ¶ 2; Ex. A.) Defendant served unverified responses on May 13, 2019. (Cooper Decl. ¶ 3; Ex. B.) Counsel for Plaintiff and Defendant exchanged correspondence between May 23, 2019 and June 11, 2019. However, the parties were unable to come to a resolution. (Id. ¶ 13-15.) Defendant offered to continue to discuss the discovery dispute through the meet and confer process prior to the discovery deadline. Instead, Plaintiff filed the instant motion on June 14, 2019. (Aliviado Decl. ¶ 14.)

Meet and Confer

Defendant opposes the motion on the ground that Plaintiff did not meet and confer in good faith in order to informally resolve any outstanding discovery disputes.

The Court disagrees with Defendant’s assertion. In fact, Plaintiff’s Exhibits L and M show various communications between the parties, and extensions to meetings allowed by Plaintiff. Exhibit L alone is a detailed 66-page meet and confer letter addressing what Plaintiff believed to be deficiencies in Defendant’s discovery responses. (Cooper Decl., Exhs. L, M.) While the meet and confer efforts between the parties could have been better, and a resolution could have potentially been reached without court intervention, the meet and confer efforts were sufficient for the purposes of this motion. Thus, the Court proceeds to the merits of this motion.

Requests for Production

Plaintiff seeks further responses to RPDs 1-28, 36-38, and 41-42. Plaintiff contends that Defendant has refused to produce compliant responses regarding information that is already in Defendant’s possession.

Defendant opposes on the ground that it has timely responded and/or served valid objections to all requests and has produced all necessary materials. Defendant further contends that this motion is overbroad as it improperly demands the production of documents about vehicles other than Plaintiff’s vehicle and information from previous years which are not relevant to Plaintiff’s claims against Defendant. Additionally, Defendant argues that the search for the documents would take HMA personnel “hundreds” of hours to perform and incur a large burden on HMA. (Zielomski Decl. ¶ 9, Aliviado Decl. ¶ 15.)

In reply, Plaintiff argues that RPDs at issue, including evidence relating to other vehicles and data from previous years, are not overbroad and are relevant to Plaintiff’s case and as such, Defendant is obligated to provide supplemental responses to such requests.

RPDs 1-2, 7-12, 41-42

These requests seek documents relating to the Subject Vehicle including communications, diagnostic tests, repair visits, and vehicle inspections.

Defendant asserts that it has already produced responsive documents concerning Plaintiff’s vehicle and that producing anything further would be unnecessary. Defendant contends that it has referred Plaintiff to specific documents among its production (e.g., repair and service documents and technical service bulletins) as responsive to particular requests.

Plaintiff’s motion is granted as to RPDs 1-2, 7-12, and 41-42. Notably, the information sought is reasonably designed to assist Plaintiff in evaluating her case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal. App. 4th 1539, 1546.) Thus, the information is relevant for discovery purposes. Moreover, the requests are not overbroad as they are directed solely at Plaintiff’s vehicle and do not seek information related to other vehicles. Additionally, contrary to Defendant’s assertions, the requests are not vague or otherwise ambiguous. (Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783 [stating that a party may not deliberately misconstrue a question for the purpose of supplying an evasive answer. Instead, when the question is somewhat ambiguous, but the nature of the information sought is apparent, the proper solution is to provide an appropriate response.].) To the extent that Defendant argues that the documents are afforded protection for being trade secrets, the Court finds that Defendant fails to sufficiently explain how the documents sought are afforded such protection.^[1]

However, the Court notes that the requests are not limited in time. As such, Defendant is ordered to produce documents sought in RPDs 1-2, 7-12, and 41-42 from the date the subject vehicle was purchased or leased to the date the lawsuit was filed.

The Court notes that if it is indeed true that Defendant is unable to comply because it does not possess the documents that fall within the category of these requests, Defendant must so indicate in the form of verified responses that comply with CCP § 2031.230.

RPDs 3-6

These requests seek documents relating to research that Defendant has conducted or directed to have conducted regarding malfunctions of the type of turbocharging system and diagnostic trouble code installed in the Subject Vehicle.

The Court finds that these requests are overbroad and not limited in time or scope. As such, RPDs 3-6 are modified to research conducted on the type of turbocharging system and DTC installed in the Subject Vehicle specifically for vehicles in California of the same year, make, and model as the Subject Vehicle.

RPDs 13-28

These requests seek documents based on the technical service bulletins and recalls issued in 2016 and/or regarding the 2016 Hyundai Tucson.

Defendant argues that these requests are overbroad because the bulletins and recalls are not applicable to the Subject Vehicle, which is a 2017 Hyundai Tucson. The Court agrees with Defendant’s assertion that Plaintiff is not entitled to documents regarding a vehicle that is not the same year, make, and model as the Subject Vehicle. Accordingly, the motion is denied as to RPDs 13-28.

RPDs 36-38

These requests seek documents relating to the characteristics of vehicles of the same make and model of the Subject Vehicle, such as abnormal vibrations exhibited and “hang-tags” affixed in “certain vehicles.”

These requests are overbroad and not limited in time or scope. As such, RPDs 36-38 are modified to apply to vehicles in California of the same year, make, and model as the Subject Vehicle.

As to all requests, Plaintiff points out that Defendant failed to provide verification for its responses to the Requests for Production submitted on May 13, 2019. The Court notes that the responses initially submitted by Defendant indeed were not verified. (Cooper Decl., Exh. A.) Defendant argues that it served verification for the responses to Plaintiff on May 31, 2019. However, it has not submitted evidence proving that the responses have been verified. (Aliviado Decl., ¶ 14.) Thus, the Court orders Defendant to provide the required verification for the responses it is ordered to produce pursuant to this order.

Trade Secret Protection

The Court notes that Defendant has also objected to Plaintiff’s discovery requests on the ground that Plaintiff seeks production that “targets proprietary design and development information for proprietary component parts of HMA Vehicles,” and thus constitutes confidential and/or trade secret information. The Court finds that the opposition papers fail to sufficiently explain what exact documents, as they relate to the RPDs at issue here, are considered to be trade secret. If Defendant wishes to seek a protective order of the material as it indicates in its papers, it must do so in a noticed motion.

Attorney Client Privilege

Defendant also objects to the RPDs on the ground that Plaintiff seeks information protected by attorney-client privilege. However, Defendant’s response fails to sufficiently explain how the information sought is protected by attorney-client privilege.

CONCLUSIONS AND ORDER

Plaintiff’s Motion to Compel Further Responses to RPDs is GRANTED IN PART as follows:

Defendant is ordered to produce within 20 days verified, further responses and documents sought in RPDs 1-2, 7-12, 41-42, without objection, from the date the subject vehicle was purchased or leased to the date the lawsuit was filed.

As to RPDs 3-6, Defendant is ordered to produce within 20 days verified, further responses, without objection, to these requests limited in scope to documents of research conducted specifically for vehicles in California of the same year, make, and model as the Subject Vehicle.

As to RPDs 36-38, Defendant is ordered to produce within 20 days verified, further responses, without objection, to these requests limited in scope to documents applicable to vehicles in California of the same year, make, and model as the Subject Vehicle.

Plaintiff’s Motion to Compel Further Responses to RPDs is otherwise denied.

Plaintiff is ordered to provide notice of this order and file proof of service of such.

DATED: November 26, 2019 ___________________________

Elaine Lu

Judge of the Superior Court