Motion to Compel Discovery in Lucia Guadalupe Fox-Sotelo vs. Nissan North America, INC| Trellis.Law

On January 01, 1900 a Party Discovery was filed involving a dispute between Fox-Sotelo, Lucia Guadalupe, Sotelo-Flores, Jose Elias, and Nissan North America, Inc, for 06 Unlimited - Breach of Contract/Warranty in the District Court of Fresno County.

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1 Benjeman Beck (SBN: 268617)
Nancy Zhang (SBN: 294675) E-FILED
2 CONSUMER LAW EXPERTS, PC 8/3/2020 6:03 PM
5757 West Century Blvd., Suite 500 Superior Court of California
3 County of Fresno
Los Angeles, California 90045
By: C. York, Deputy
4 Telephone: (310) 442-1410
Fax: (877) 566-8828
5 ben@nolemon.com
nancy@nolemon.com
6

7 Attorneys for Plaintiffs,
JOSE ELIAS SOTELO-FLORES and
8
LUCIA GUADALUPE FOX-SOTELO
9

11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 FOR THE COUNTY OF FRESNO
13

14 JOSE ELIAS SOTELO-FLORES, an Case No.: 18CECG02237
individual; and LUCIA GUADALUPE FOX
15 SOTELO, an individual [Assigned to Hon. Tyler D. Tharpe, Dept. 501]
16 Plaintiffs, PLAINTIFFS’ NOTICE OF MOTION
AND MOTION TO COMPEL FURTHER
17
RESPONSES AND DOCUMENTS TO
18 vs. PLAINTIFFS’ REQUEST FOR
PRODUCTION OF DOCUMENTS, SET
19 NO. ONE
NISSAN NORTH AMERICA, INC.; and
20 [Concurrently filed with Separate Statement;
DOES 1 through 50, inclusive
21 Declaration of Nancy Zhang; [Proposed]
Defendants. Order]
22
Date: November 4, 2020
23 Time: 3:30 p.m.
Dept.: 501
24
Complaint Filed: June 21, 2018
25 Trial Date: July 26, 2021
26

PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST FOR
PRODUCTION OF DOCUMENTS, SET NO. ONE
1 TO THE HONORABLE COURT, DEFENDANTS, AND THEIR ATTORNEYS OF

2 RECORD:

3 PLEASE TAKE NOTICE that on November 4, 2020 at 3:30 p.m. in Department 501

4 of the above-captioned court, located at 1100 Van Ness Avenue, Fresno, CA 93724, Plaintiffs

5 JOSE ELIAS SOTELO-FLORES and LUCIA GUADALUPE FOX-SOTELO (“Plaintiffs”)

6 will, and hereby do, move for an order to strike Defendant’s meritless objections, and compel

7 further responses and documents to Plaintiffs’ Request for Production of Documents, Set No.

8 One, Nos. 10, 16, 19-21, 32, 34, and 42 (collectively, the “Requests”).

9 This Motion is made pursuant to California Code of Civil Procedure §2031.310, on the

10 grounds that Defendant has failed to provide adequate responses and documents to Plaintiffs’

11 Requests, which seek documents directly relevant to their claims under the Song-Beverly

12 Consumer Warranty Act.

13 Plaintiffs allege that their 2017 Nissan Sentra, which was manufactured and distributed

14 by Defendant, suffers from widespread defects—including the Braking System Defect—and

15 that Defendant has been unable to repair their vehicle within a reasonable number of attempts.

16 Plaintiffs further allege that Defendant knew that this vehicle suffered from the ongoing defects,

17 which are widespread, but nevertheless refused to repurchase the vehicle—a willful violation of

18 the Song-Beverly Consumer Warranty Act (“Song-Beverly Act”).

19 Plaintiffs’ Requests seek the following general categories of documents: (1) those

20 relating to Defendant’s internal investigation and analysis of the Braking System Defects

21 plaguing Plaintiffs’ vehicle and establishing that Defendant previously knew of such Defects

22 and knew it could not repair them regardless of repair attempts but nevertheless failed to

23 repurchase the vehicle (i.e., Nos. 10, 16, and 19-21), and (2) those relating to Defendant’s

24 warranty and vehicle repurchase policies, procedures, and practices (i.e., Nos. 32, 34, and 42).

25 Notwithstanding the plain relevance of these documents to Plaintiffs’ claims, however,

26 Defendant has responded to the Requests at issue by way of pure, boilerplate objections and

27 utterly non-responsive statements. Such evasive responses fail to comply with the Code of

28 Civil Procedure, necessitating further responses. Moreover, to date, Defendant has failed to
1
PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST FOR
PRODUCTION OF DOCUMENTS, SET NO. ONE
1 provide any emails or its search protocol, in contravention of its obligations under the

2 Discovery Act.

3 In response to Defendant’s abuses of the discovery process, Plaintiffs attempted to

4 engage in meet-and-confer efforts with Defendant through letters. However, Defendant has

5 made it clear that its goal is to stonewall Plaintiffs’ discovery.

6 Notably, because Defendant objected to the Requests on the ground of undue burden,

7 but failed to identify in its objections the types or categories of sources of electronically stored

8 information (“ESI”) that they assert are not reasonably accessible, as required by section

9 2031.210(d), Defendant has waived any and all objections as to electronically stored

10 information as a matter of law.

11 Plaintiffs seek an order striking Defendant’s meritless objections and compelling

12 Defendant to produce adequate further responses and documents (including ESI, as to which

13 Defendant has waived any and all objections pursuant to section 2031.210(d)) within ten (10)

14 calendar days of the Court’s order.

15 The Motion is based upon this Notice, the following Memorandum of Points and

16 Authorities, the Separate Statement, the Declaration of Nancy Zhang, the pleadings and papers

17 on file herein, and upon any other matters that may be presented to the Court at the hearing.

19 Dated: August 3, 2020 Respectfully submitted,
Consumer Law Experts, P.C.
20

21
By:
22 Nancy Zhang
Attorney for Plaintiffs,
23 JOSE ELIAS SOTELO-FLORES and
LUCIA GUADALUPE FOX-SOTELO
24

28
2
PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST FOR
PRODUCTION OF DOCUMENTS, SET NO. ONE
1 TABLE OF CONTENTS

3 I. INTRODUCTION ........................................................................................................... 1

4 II. STATEMENT OF FACTS .............................................................................................. 2

5 A. Plaintiffs’ Relevant Repair History ......................................................................... 2

6 B. Defendant’s Awareness of Braking System Defect ................................................. 3

7 C. Plaintiff’s Prelitigation Request for Repurchase ..................................................... 4

8 D. Procedural History .................................................................................................. 4

9 E. Plaintiffs’ Discovery Requests ................................................................................ 4

10 F. Defendant’s Insufficient Responses and Boilerplate Objections ............................. 5

11 G. Plaintiffs’ Meet-and-Confer Efforts ........................................................................ 5

12 III. LEGAL ANALYSIS........................................................................................................ 6

13 A. The Scope of Discovery is Broad ............................................................................ 6

14 B. Defendant’s Refusal to Provide Meaningful, Substantive Responses Evinces a

15 Lack of Good Faith ................................................................................................. 7

16 C. The Requests are Directly Relevant to Plaintiff’s Claims Under the Song-Beverly

17 Act .......................................................................................................................... 8

18 1. The Song-Beverly Consumer Warranty Act ................................................... 8

19 2. The Requested Documents are Necessary to Support Plaintiffs’ Claims ...... 10

20 3. Courts Routinely Compel Production of Documents Similar to Those

21 Requested Here ............................................................................................ 10

22 IV. CONCLUSION ............................................................................................................. 12

28
i
PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST FOR
PRODUCTION OF DOCUMENTS, SET NO. ONE
1 TABLE OF AUTHORITIES

2 CASES

3 BMW of N. Am. v. Gore, 517 U.S. 559, 576-77 (1996)............................................................ 10

4 Cembrook v. Super. Ct., 56 Cal. 2d 423 (1961) .........................................................................8

5 Colonial Life & Acc. Ins. Co. v. Sup. Ct., 31 Cal. 3d 785 (1982) ..............................................7

6 Donlen v. Ford Motor Co., 217 Cal.App.4th 138, 143-144, 153 (2013) ............................ 11, 12

7 Doppes v. Bentley Motors, Inc., 174 Cal. App. 4th 967 (2009) ......................................... 11, 12

8 Glenfed Development Corp. v. Superior Court, 53 Cal. App. 4th 1113, 1117-1118 (1997) .... 11

9 Gonzalez v. Superior Court, 33 Cal. App. 4th 1539 (1995) .......................................................6

10 Greyhound Corp. v. Sup. Ct., 56 Cal.2d 355 (1961) ..................................................................7

11 Ibrahim v. Ford Motor Co., 214 Cal. App. 3d 878 (1989).........................................................8

12 Jensen v. BMW of N. Am., LLC, 35 Cal. App. 4th 112, 136 (1995) ...........................................8

13 Johnson v. Ford Motor Co., 35 Cal. 4th 1191, 1198, 1199 (2005) .......................................... 10

14 Korea Data Systems Co. v. Super. Ct., 51 Cal. App. 4th 1513 (1997) .......................................7

15 Krotin v. Porsche Cars N. Am., Inc., 38 Cal.App.4th 294, 303 (1995) ......................................9

16 Kwan v. Mercedes Benz of North America, Inc. 23 Cal.App.4th 174, 18 (1994) .......................9

17 Lipton v. Sup. Ct., 48 Cal. App. 4th 1599 (1996) ......................................................................7

18 Lukather v. General Motors, LLC, 181 Cal. App. 4th 1041 (2010) ...........................................8

19 Lundy v. Ford Motor Co., 87 Cal. App. 4th 472 (2001) ............................................................8

20 Mexia v. Rinker Boat Co., Inc. 17 Cal. App. 4th 1297 (2009) ...................................................8

21 Norton v. Super. Ct., 24 Cal. App. 4th 1750, 1760-1761 (1994) ............................................. 12

22 Oregel v. American Isuzu Motors, Inc., 90 Cal. App. 4th 1094 (2001).................................. 8, 9

23 Stadish v. Sup. Ct. (Southern Calif. Gas Co.), 71 Cal. App. 4th 1130 (1999) ............................5

24 Troensegaard v. Silvercrest Indus., Inc., 175 Cal. App. 3d 218, 226 (1985) .............................9

25 STATUTES

26 Cal. Civ. Code. § 1790 et seq ....................................................................................................8

27 Cal. Civ. Code. § 1791.1 ...........................................................................................................9

28 Cal. Civ. Code. § 1793.2 ...........................................................................................................9
ii
PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST FOR
PRODUCTION OF DOCUMENTS, SET NO. ONE
1 Cal. Civ. Code. § 1794 ..............................................................................................................9

2 Cal. Civ. Code. § 1794(a) ..........................................................................................................8

3 Cal. Civ. Code § 1794(c) ...........................................................................................................8

4 Cal. Civ. Proc. Code § 2017.010 ........................................................................................... 6, 7

5 Cal. Civ. Proc. Code § 2031.210 ...............................................................................................7

6 Cal. Civ. Proc. Code §2031.240 ................................................................................................7

7 Cal. Civ. Proc. Code § 2031.240(b)...........................................................................................7

8 Cal. Civ. Proc. Code § 2031.210(d)...........................................................................................5

28
iii
PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST FOR
PRODUCTION OF DOCUMENTS, SET NO. ONE
1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3 This action alleges that Defendant Nissan North America, Inc. (“Defendant” or

4 “NNA”) violated California’s Song-Beverly Consumer Warranty Act (“Song-Beverly Act” or

5 “lemon law”) by failing to repair Plaintiffs’ 2017 Nissan Sentra vehicle and its various

6 defects—including the Braking Defect—within a reasonable number of attempts, and by

7 failing to repurchase the vehicle despite its knowledge that Plaintiffs’ vehicle suffers from

8 those defects.

9 After commencing his lawsuit, Plaintiffs propounded their Request for Production of

10 Documents, Set No. One, which included Request Nos. 10, 16, 19-21, 32, 34, and 42

11 (collectively, the “Requests”), which are broadly divisible into the following two categories:

12 (1) those relating to Defendant’s internal investigation and analysis of the Braking System

13 Defect plaguing Plaintiffs’ vehicle and establishing that Defendant previously knew of such

14 Defect and knew it could not repair itregardless of repair attempts but nevertheless failed to

15 repurchase the vehicle (i.e., Nos. 10, 16, and 19-21), and (2) those relating to Defendant’s

16 warranty and vehicle repurchase policies, procedures, and practices (i.e., Nos. 32, 34, and 42).

17 The documents sought are indisputably relevant to Plaintiffs’ claims that Defendant

18 possessed prior knowledge of the Braking System Defect (through, for example, internal

19 testing, bulletins issued to its dealers, and/or service campaigns); knew that Plaintiffs’ vehicle

20 suffered from the defect; knew itcould not repair Plaintiffs’ vehicle regardless of how many

21 repair visits were made; willfully violated the Song-Beverly Act by refusing to repurchase the

22 subject vehicle, and breached the implied warranty of merchantability when it sold to

23 Plaintiffs, a vehicle that contains known defects at the time of sale.

24 Defendant responded to this discovery in the same obstructionist, bad faith manner that

25 it routinely uses against California consumers who file Lemon Law claims. Defendant

26 “responded” to each and every of the Requests with nothing more than “boilerplate”

27 objections, e.g., form objections that the documents sought allegedly were “irrelevant”; the

28 Requests are “overbroad” or “vague”. Moreover, Defendant has failed to produce any emails;
1
PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST FOR
PRODUCTION OF DOCUMENTS, SET NO. ONE
1 PowerPoint slides; or memos—reflecting the investigation undertaken to issue the numerous

2 TSBs and/or Recall campaigns applicable to the Braking System Defect.

3 In response to Defendant’s abuse of the discovery process, Plaintiffs attempted to

4 engage in substantive meet-and-confer efforts, to which Defendant made clear that itrefuses

5 to provide code compliant responses or full and complete document production.

6 Time and again, in case after case, other courts have, under circumstances nearly

7 identical to those here, compelled automobile manufacturers to produce responsive lemon law

8 documents. And despite evidence indicating the existence of the documents sought by

9 Plaintiffs, Defendant has unjustifiably withheld such documents. The most reasonable

10 inference for this behavior is that the withheld documents are adverse to Defendant’s position

11 and establish Plaintiffs’ claims.

12 Accordingly, Plaintiffs seek an order striking Defendant’s meritless objections and

13 directing Defendant to provide further responses to the Requests, as well as the corresponding

14 documents (including emails), within ten (10) calendar days of the order.

15 II. STATEMENT OF FACTS

16 A. Plaintiffs’ Relevant Repair History

17 On July 25, 2017, Plaintiffs purchased a 2017 Nissan Sentra (“Subject Vehicle”). (Zhang

18 Decl. ¶ 3.) During the warranty period, the vehicle contained or developed defects, including

19 the Braking System Defect. Plaintiffs presented the Subject Vehicle on at least three (3)

20 occasions with concerns relating to said Defect. (Zhang Decl. ¶¶ 4-7, Ex. A.)

21 Plaintiffs presented the Subject Vehicle to Defendant’s authorized dealership(s) on at

22 least the following occasions:

23 On December 27, 2017, with only 9,878 miles on the odometer, Plaintiffs first presented

24 the Subject Vehicle to Defendant’s dealership after noticing a bizarre clunking noise emitting

25 from the front passenger side of the Vehicle. On this repair visit, the technicians verified the

26 clunking noise, and performed Technical Service Bulletin (“TSB”) 12-055F. (Zhang Decl. ¶ 5.)

28
2
PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST FOR
PRODUCTION OF DOCUMENTS, SET NO. ONE
1 On March 26, 2018, with only 15,594 miles on the odometer, Plaintiffs brought the

2 Subject Vehicle to Defendant’s dealership again after noticing an abnormal clicking noise

3 emitting from the front of the Vehicle. (Zhang Decl. ¶ 6.)

4 From May 14, 2018 through May 15, 2018, with only 17,995 miles on the odometer,

5 Plaintiffs again presented the Subject Vehicle to Defendant’s dealership with the complaint that

6 the clunking noise is emitting from the front end of the Vehicle. The technicians were once

7 again able to verify Plaintiffs’ concern, and installed a new front passenger side strut. The

8 technicians also cleaned and de-greased the brake pads. (Zhang Decl. ¶ 7.)

9 B. Defendant’s Awareness of Braking System Defect

10 Defendant has been aware of widespread Braking Defect in 2017 Nissan Sentra

11 vehicles, including Plaintiffs’ vehicle. Based on consumer complaints, Defendant

12 undoubtedly analyzed and investigated the various vehicle components in an effort to curb

13 failure rates. Defendant has issued numerous technical service bulletins (“TSBs”) which

14 acknowledge the existence of the defect and presumably are the result of internal

15 investigations, testing, and analysis. Once TSBs are implemented, Defendant then receives

16 feedback as to the sufficiency of the repair procedures. Consequently, if the procedures fail to

17 repair the underlying problem, then Defendant may update these TSBs, one after the other,

18 updating the procedures and/or parts.

19 Based on Plaintiffs’ research, the following are some of the TSBs relating to the

20 Braking System Defect that Defendant issued:

21 - NTB12-055f issued on June 26, 2017, which addresses the clicking noise exhibited
in Plaintiffs’ Vehicle. This TSB was performed on Plaintiffs’ Vehicle. (Id. ¶ 8, Ex.
22 B.)
23
- NTB12-055g, issued on January 17, 2020, which also addresses the clicking noise
24 exhibited in Plaintiffs’ Vehicle. (Id. ¶ 9, Ex. C.)

25 - NTB00-033g, issued on March 19, 2018, which addresses the brake noise exhibited
in Plaintiffs’ Vehicle. (Id. ¶ 10, Ex. D.)
26

27 - NTB16-109b, issued on May 17, 2018, which addresses the bizarre noise and
potential misdiagnosis of the noise exhibited in Plaintiffs’ Vehicle. (Id. ¶ 11, Ex. E.)
28
3
PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST FOR
PRODUCTION OF DOCUMENTS, SET NO. ONE
1
The foregoing list of TSBs is not exhaustive. Each TSB, recall, or campaign issued by
2
Defendant is presumably the result of various monitoring efforts, internal investigations,
3
analyses, and assessments to track customer complaints, monitor various repairs, investigate
4
returned parts, and develop new repair procedures based on Defendant’s then-prevailing
5
theories about the root cause of the failures.
6
The discovery in this case seeks those internal investigations and assessments
7
performed by Defendant regarding 1) whether earlier TSB, recalls, or campaigns were
8
unsuccessful; 2) what considerations were accounted for in updating the technical procedures;
9
3) what types of failures were observed and accounted for by Defendant, etc. All this
10
information is relevant to the questions of 1) whether the vehicle suffered from defects; 2)
11
whether based on its internal testing and investigation Defendant could repair the vehicle to
12
conform to warranty within a reasonable number of opportunities; 3) whether Defendant
13
provided its repair facilities with sufficient literature and parts to complete repairs during the
14
warranty period; and 4) whether Defendant knew it could not repair Plaintiffs’ vehicle but
15
refused to repurchase it nonetheless.
16
Even so, Defendant refuses to produce any internal investigation documents.
17
C. Plaintiff’s Prelitigation Request for Repurchase
18
Fed up with all of the problems they continuously experience with the Subject Vehicle,
19
Plaintiffs contacted NNA to complain about the brake defect in the Subject Vehicle and
20
requested that NNA buyback the vehicle, which NNA subsequently denied. (Zhang Decl. ¶12.)
21
D. Procedural History
22
On June 21, 2018, Plaintiffs filed their complaint, alleging various Song-Beverly claims
23
against Defendant. (Zhang Decl. ¶ 13.) Defendant’s Answer generally denied all allegations of
24
Plaintiffs’ Complaint. (Id. ¶ 14.)
25
E. Plaintiffs’ Discovery Requests
26
On November 18, 2019, Plaintiffs propounded their Request for Production of
27
Documents, Set No. One (“RFP, Set One”) on Defendant seeking documents: (1) relating to
28
4
PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST FOR
PRODUCTION OF DOCUMENTS, SET NO. ONE
1 Defendant’s internal investigations and analysis of the Braking System Defect plaguing

2 Plaintiffs’ vehicle and establishing Defendant previously knew of such Defects but

3 nevertheless refused to repurchase the vehicle (i.e., Nos. 10, 16, and 19-21), and (2) those

4 relating to Defendant’s warranty and vehicle repurchase policies, procedures, and practices

5 (i.e., Nos. 32, 34, and 42). (Zhang Decl. ¶ 15, Ex. F.)

6 F. Defendant’s Insufficient Responses and Boilerplate Objections

7 On June 1, 2020, Defendant mail served its responses to RFP, Set One. (Zhang Decl. ¶

8 17, Ex. H.) Notwithstanding the plain relevance of the Requests to Plaintiff’s Song-Beverly

9 Act claims, Defendant has responded by way of boilerplate objections. (Id.) No documents

10 concerning Defendant’s investigations and analysis leading up to the issuance of a particular

11 TSB, recall, campaign, or warranty adjustment were included.

12 Of Defendant’s many boilerplate objections, one is premised on undue burden. A

13 responding party who does not search an ESI source on the grounds of undue burden or

14 expense must “identify in its response the types or categories of sources of electronically

15 stored information that it asserts are not reasonably accessible.” Civ. Proc. Code §2031.210(d).

16 A failure to do so waives “any objections it may have relating to that electronically stored

17 information.” See id.; see also, Stadish v. Super. Ct., 71 Cal. App. 4th 1130, 1141 (1999) (a

18 party whose response fails to set forth a particular ground for objection waives its right to raise

19 that objection later). As Defendant has not made any attempt to articulate the basis of its

20 burden objection, Defendant has waived any objections it may assert relating to ESI.

21 Any claim of vagueness, ambiguity, and/or overbreadth with respect to the defined terms

22 “Braking Defect” is similarly disingenuous as Plaintiffs defined this term at the beginning of

23 Plaintiffs’ Requests. This definition is based on the Subject Vehicle’s repair history;

24 Plaintiffs’ understanding and articulation of the symptoms of the Defect; and Defendant’s own

25 articulation of the Defect as used in TSBs. (Zhang Decl. ¶¶ 8-11, Exhs. B-E.) Furthermore,

26 Plaintiffs’ Requests are limited in scope (limited to just 2017 Nissan Sentra vehicles, the same

27 as Plaintiffs’ vehicle).

28 G. Plaintiffs’ Meet-and-Confer Efforts
5
PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST FOR
PRODUCTION OF DOCUMENTS, SET NO. ONE
1 Plaintiffs have attempted to meet and confer in good faith with Defendant about the

2 Requests. Such efforts commenced on April 20, 2020, when Plaintiffs sent a detailed meet and

3 confer letter to Defendant explaining the protocol for electronically stored information (“ESI”).

4 (Zhang Decl. ¶ 18, Ex. I.)

5 On June 25, 2020, Plaintiff wrote another meet and confer letter, addressing

6 Defendant’s improper stonewalling of Plaintiffs’ discovery, comprehensively explained why

7 further responses and documents production are necessary, and requested that Defendant

8 provide a response to that letter by July 2, 2020. (Id. ¶ 19, Ex. J.)

9 After Plaintiffs granted Defendant’s request for extension of time for Defendant to

10 respond to the meet and confer letters, Defendant finally provided a response letter on July 16,

11 2020. In this July 16 letter, Defendant stands by its boilerplate objections and refuses to make

12 full and complete production of documents. (Id. ¶¶ 20-21, Exhs. K-L.)

13 On July 31, 2020, Plaintiffs’ counsel again wrote to Defendant and reiterated how the

14 responses in dispute are not code compliant, again explained why Defendant’s objections must

15 be withdrawn, and pointed out again that the Defendant’s document production is missing the

16 vast majority of the requested documents. (Id. ¶ 22, Ex. M.)

17 It is clear from Defendant’s meet and confer communications that Defendant’s goal is to

18 stonewall Plaintiffs’ discovery. As such, Plaintiffs are left with no other choice than to file the

19 present Motion.

20 III. LEGAL ANALYSIS

21 A. The Scope of Discovery is Broad

22 “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant

23 to the subject matter involved in the pending action or to the determination of any motion made

24 in that action, if the matter either is itself admissible in evidence or appears reasonably calculated

25 to lead to the discovery of admissible evidence.” Civ. Proc. Code § 2017.010. For the purposes

26 of discovery, information is considered “relevant to the subject matter” if it might reasonably

27 assist a party in evaluating its case, preparing for trial, or facilitating settlement thereof.

28 Gonzalez v. Sup. Ct., 33 Cal. App. 4th 1539, 1546 (1995); Lipton v. Super. Ct., 48 Cal. App. 4th
6
PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST FOR
PRODUCTION OF DOCUMENTS, SET NO. ONE
1 1599 (1996). Admissibility does not control the scope of discovery. Instead, the test is whether

2 the information sought might lead to the discovery of admissible evidence. Civ. Proc. Code

3 § 2017.010. Any doubts as to relevance should generally be resolved in favor of permitting

4 discovery. Colonial Life & Acc. Ins. Co. v. Super. Ct., 31 Cal. 3d 785, 790 (1982). Objections

5 based on irrelevancy and immateriality to the issues of the case “cannot be used to deny

6 discovery.” Coy v. Super. Ct., 58 Cal. 2d 210, 217 (1962). These standards are to be applied in

7 accordance with the liberal policies underlying the discovery procedures. See Colonial Life, 31

8 Cal. 3d at 790; Greyhound Corp. v. Super. Ct., 56 Cal. 2d 355, 376 (1961) (the expansive scope

9 of discovery is a deliberate attempt to take the game element out of trial preparation and to do

10 away with the sporting theory of litigation—namely, surprise at the trial).

11 B. Defendant’s Refusal to Provide Meaningful, Substantive Responses Evinces
a Lack of Good Faith
12
Defendant has responded to the disputed Requests by way of a nearly identical set of
13
boilerplate objections. Such boilerplate objections fall far short of the required standards. See,
14
Civ. Proc. Code § 2031.210 (a response to document request requires a party to “respond
15
separately to each item or category” in one of three manners, including “an objection to the
16
particular demand”) (emphasis added); 2031.240(b) (if there is objection to producing “an
17
item,” the response must “identify with particularity any document ... to which an objection is
18
being made” and “set forth clearly the extent of, and the specific ground for, the objection”
19
(emphasis added). Furthermore, to the extent documents are withheld due to an objection, the
20
response must 1) identify with particularity the document to which the objection is being
21
made; and 2) set forth the grounds for the objection, including the production of a privilege log
22
if the objection is based on privilege. Cal. Civ. Proc. Code §2031.240.
23
It is well-established that general or boilerplate objections are not proper objections,
24
and Defendant may not indiscriminately raise them to evade its discovery obligations. Korea
25
Data Sys. Co. v. Super. Ct., 51 Cal. App. 4th 1513, 1516 (1997) (boilerplate objections “lack[]
26
the specificity the statute mandates” and their use may be sanctionable).
27
Defendant’s failure to provide adequate responses—and its refusal to explain the basis
28
7
PLAINTIFFS’ MOTION TO COMPEL FURTHER RESPONSES AND DOCUMENTS TO REQUEST FOR
PRODUCTION OF DOCUMENTS, SET NO. ONE
1 for its objections—evinces a lack of good faith. See Cembrook v. Super. Ct., 56 Cal. 2d 423,

2 430 (1961) (objections to entire set of requests for admissions indicates a lack of good faith).

3 Plaintiffs addresses Defendant’s boilerplate objections in broad strokes below, and in greater

4 detail in their concurrently-filed Separate Statement.

5 C. The Requests are Directly Relevant to Plaintiff’s Claims Under the Song-
Beverly Act
6
1. The Song-Beverly Consumer Warranty Act
7
The Song-Beverly Act1 (“Act”), Cal. Civ. Code section 1790 et seq., is also known as
8
California’s “Lemon Law.” Ibrahim v. Ford Motor Co., 214 Cal. App. 3d 878 (1989). To
9
succeed on a claim brought under the Act, the plaintiff bears the burden of proving, by a
10
preponderance of the evidence, several elements, including nonconformity of a vehicle that
11
substantially impaired its use, value or safety; presentation of vehicle to manufacturer or
12
authorized representative for repair; and failure to repair the defect after a reasonable number
13
of attempts. Id. at 886-87; Oregel v. Am. Isuzu Motors, Inc., 90 Cal. App. 4th 1094, 1101
14
(2001).
15
The Act also provides a right of action for a buyer to recover damages and other relief
16
when there has been a breach of the implied warranty of merchantability if the vehicle was
17
sold at the time of sale with a known defect. Cal. Civ. Code. § 1794(a); Mexia v. Rinker Boat
18
Co., Inc. 17 Cal. App. 4th 1297, 1304-05 (2009).
19
In addition, a buyer may be entitled to a civil penalty of up to two times the actual
20
damages upon a showing that the manufacturer willfully failed to abide by any o

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McGuire, Rosemary Track Judge’s New Case

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January 01, 1900

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Party Discovery: Lucia Guadalupe Fox-Sotelo vs. Nissan North America, INC

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