Preview
1 Tionna Dolin (SBN 299010)
e-mail: tdolin@slpattorney.com
2 Esther Kim (SBN 318083) 12/10/2020
e-mail: ezkim@slpattorney.com
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STRATEGIC LEGAL PRACTICES, APC
4 1840 Century Park East, Suite 430
Los Angeles, CA 90067
5 Telephone: (310) 929-4900
Facsimile: (310) 943-3838
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7 Attorneys for Plaintiff,
JOEL M. SILANO
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9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF BUTTE
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12 JOEL M. SILANO, Case No.: 20CV02347
13 Plaintiff, Case Initiated: August 2, 2019
14 Hon. Robert A. Glusman
vs.
15 PLAINTIFF’S NOTICE OF MOTION
FCA US, LLC; RED BLUFF CHRYSLER AND MOTION TO COMPEL FURTHER
16 DODGE JEEP RAM; and DOES 1 through RESPONSES TO PLAINTIFF’S
10, inclusive, REQUESTS FOR PRODUCTION OF
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DOCUMENTS, SET ONE;
Defendants. MEMORANDUM OF POINTS AND
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AUTHORITIES IN SUPPORT THEREOF
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[Filed concurrently with Plaintiff’s Separate
20 Statement, Declaration of Esther Kim in
21 Support of Plaintiff’s Motion to Compel,
Proof of Service, and [Proposed] Order]
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23 Date: January 20, 2021
Time: 9:00 a.m.
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PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO HIS REQUESTS FOR PRODUCTION OF DOCUMENTS,
SET ONE
1 TO THE HONORABLE COURT, DEFENDANTS, AND THEIR ATTORNEYS OF
2 RECORD:
3 PLEASE TAKE NOTICE that on January 20, 2021 at 9:00 a.m. at the above-captioned
4 court, located at 1775 Concord Ave., Chico, California 95928, Plaintiff JOEL M. SILANO
5 (“Plaintiff”) will, and hereby does, move for an order to strike Defendant FCA US LLC’s
6 (“FCA” or “Defendant”) meritless objections and compel further responses to Plaintiff’s
7 Requests for Production of Documents, Set One, Nos. 1, 7, 17, 19, 20, 21, 22, 23, 24, 27, 29, 30,
8 31, 32, 33, 34, 42, 49, 50, 53, 74, 75, 76, 81, and 82 (collectively, the “Requests”), and
9 production of all responsive documents corresponding to those Requests.
10 This Motion is made pursuant to California Code of Civil Procedure §2031.310, on the
11 grounds that Defendant has failed to provide adequate responses to Plaintiff’s Requests, which
12 seek documents directly relevant to his claims under the Song-Beverly Consumer Warranty Act
13 (“Song-Beverly Act”) as well as his fraudulent omission claim.
14 Plaintiff alleges that his 2018 Chrysler Pacifica vehicle, which was manufactured and
15 distributed by Defendant, suffers from widespread defects—including the Transmission and
16 Electrical Defects—and that Defendant has been unable to repair the vehicle within a
17 reasonable number of attempts. Plaintiff also alleges that Defendant knew that the vehicle
18 suffered from prevalent defects, but nevertheless refused to repurchase the vehicle in willful
19 violation of the Song-Beverly Act. Plaintiff further alleges that Defendant knew that the
20 vehicle, and its 9HP transmission and Powertrain Control Module (“PCM”), are defective and
21 susceptible to sudden and premature failure but failed to disclose this fact to Plaintiff at the time
22 of sale, throughout the course of the repair history for Plaintiff’s vehicle, and during Plaintiff’s
23 direct contacts with Defendant.
24 Accordingly, the Requests seek the following general categories of documents: (1) those
25 relating to Defendant’s internal investigation and analysis of the Transmission and Electrical
26 Defects plaguing Plaintiff’s vehicle, establishing that Defendant previously knew of said
27 Defects but nevertheless refused to repurchase the vehicle (i.e., RFP Nos. 1, 17, 19, 20, 21, 22,
28 23, 24, 27, 29, 30, 31, 32, 33, 34, 74, 75, 76, 81, 82); and (2) documents concerning
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PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO HIS REQUESTS FOR PRODUCTION OF DOCUMENTS,
SET ONE
1 Defendant’s warranty and vehicle repurchase policies, procedures, and practices (i.e., RFP Nos.
2 7, 42, 49, 50, 53).
3 Notwithstanding the plain relevance of these documents to Plaintiff’s claims,
4 Defendant’s responses to the Requests at issue consist of pure, boilerplate objections and utterly
5 non-responsive statements. Such evasive responses fail to comply with the Code of Civil
6 Procedure, necessitating further responses. Moreover, to date, Defendant has failed to provide
7 any e-mails and other electronically stored information or search protocol, contrary to its
8 obligations under the Discovery Act.
9 In response to Defendant’s abuse of the discovery process, Plaintiff attempted to meet
10 and confer multiple times with Defendant, including offers to (1) meet and confer on a search
11 protocol concerning the production of relevant, electronically stored information (ESI); (2)
12 telephonically meet-and-confer with Defendant concerning the issues underlying the present
13 discovery dispute; and (3) further clarify the scope of and proffer justification for the Requests.
14 Moreover, the parties have agreed to enter into the Los Angeles Superior Court (“LASC”)
15 Model Protective Order – Confidential Designation Only to facilitate production of documents
16 containing information that Defendant maintains, though has failed to establish, is confidential,
17 proprietary, or trade secret; or should otherwise be produced subject to a protective order.
18 Nonetheless, Defendant has failed to address any of Plaintiff’s positions in substance,
19 thereby standing stoically and unjustifiably by its objections and position that the subject matter
20 of the present action, and thus the information to which Plaintiff is entitled, is limited in scope.
21 Accordingly, Plaintiff seeks an order striking Defendant’s meritless objections and compelling
22 Defendant to produce adequate further verified responses to Plaintiff’s Requests and all
23 responsive documents corresponding thereto (including ESI, to which Defendant has waived
24 any and all objections pursuant to section 2031.210(d)) within 10 calendar days of the Court’s
25 order.
26 The Motion is based upon this Notice, Plaintiff’s Memorandum of Points and
27 Authorities in support thereof, Plaintiff’s Separate Statement, the Declaration of Esther Kim,
28 the pleadings and papers on file herein, and upon any other matters that may be presented to the
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PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO HIS REQUESTS FOR PRODUCTION OF DOCUMENTS,
SET ONE
1 Court at the hearing.
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3 Dated: December 10, 2020 Respectfully submitted,
Strategic Legal Practices, APC
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5 By:
Esther Kim
6 Attorneys for Plaintiff JOEL M. SILANO
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PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO HIS REQUESTS FOR PRODUCTION OF DOCUMENTS,
SET ONE
1 TABLE OF CONTENTS
2 I. INTRODUCTION ......................................................................................................... 1
3 II. STATEMENT OF FACTS ............................................................................................ 3
4 A. Plaintiff’s Relevant Repair History ......................................................................... 3
5 B. FCA’s Awareness of the Transmission and Electrical Defects................................ 4
6 C. Plaintiff’s Prelitigation Request for Repurchase ..................................................... 6
7 D. Procedural History .................................................................................................. 6
8 E. Plaintiff’s Discovery Requests ................................................................................ 6
9 F. FCA’s Insufficient Responses and Boilerplate Objections ...................................... 7
10 G. Plaintiff’s Meet-and-Confer Efforts ........................................................................ 8
11 III. ARGUMENT ................................................................................................................. 9
12 A. The Scope of Discovery is Broad ............................................................................ 9
13 B. FCA’s Refusal to Provide Meaningful, Substantive Responses Demonstrates a
14 Lack of Good Faith ................................................................................................. 9
15 C. The Requests are Directly Relevant to Plaintiff’s Claims ..................................... 10
16 1. The Song-Beverly Consumer Warranty Act ................................................. 10
17 2. Fraud By Omission....................................................................................... 12
18 3. The Requested Documents are Necessary to Support Plaintiff’s Claims ...... 12
19 4. Courts Routinely Compel Production of Documents Similar to Those
20 Requested Here ............................................................................................ 13
21 IV. CONCLUSION ............................................................................................................ 15
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PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO HIS REQUESTS FOR PRODUCTION OF DOCUMENTS,
SET ONE
1 TABLE OF AUTHORITIES
2 CASES
3 Berroteran v. Sup. Ct., 41 Cal. App. 5th 518 (2019) ...............................................................15
4 Cembrook v. Super. Ct., 56 Cal. 2d 423 (1961) .......................................................................10
5 Colonial Life & Acc. Ins. Co. v. Sup. Ct., 31 Cal. 3d 785 (1982) ..............................................9
6 Coy v. Sup. Ct., 58 Cal.2d 210, 217 (1962) ...............................................................................9
7 Donlen v. Ford Motor Co., 217 Cal.App.4th 138, 143-144, 153 (2013)............................ 13, 14
8 Doppes v. Bentley Motors, Inc., 174 Cal. App. 4th 967 (2009) ......................................... 13, 14
9 Glenfed Development Corp. v. Sup. Court, 53 Cal.App.4th 1113, 1117-1118 (1997) .............13
10 Gonzalez v. Superior Court, 33 Cal. App. 4th 1539 (1995) .......................................................9
11 Greyhound Corp. v. Sup. Ct., 56 Cal.2d 355 (1961) ..................................................................9
12 Ibrahim v. Ford Motor Co., 214 Cal. App. 3d 878 (1989).......................................................10
13 Jensen v. BMW of N. Am., LLC, 35 Cal. App. 4th 112, 136 (1995) .........................................11
14 Johnson v. Ford Motor Co., 35 Cal. 4th 1191, 1198, 1199 (2005) ..........................................12
15 Jones v. ConocoPhillips, 198 Cal.App.4th 1187, 1198 (2011) ................................................12
16 Korea Data Systems Co. v. Super. Ct., 51 Cal. App. 4th 1513 (1997) .....................................10
17 Kwan v. Mercedes Benz of North America, Inc. 23 Cal.App.4th 174, 18 (1994) ............... 10, 11
18 LiMandri v. Judkins, 52 Cal.App.4th 471 (1997) ....................................................................12
19 Lipton v. Sup. Ct., 48 Cal. App. 4th 1599 (1996) ......................................................................9
20 Lukather v. General Motors, LLC, 181 Cal. App. 4th 1041 (2010) .........................................11
21 Lundy v. Ford Motor Co., 87 Cal. App. 4th 472 (2001) ..........................................................10
22 Mexia v. Rinker Boat Co., Inc. 17 Cal. App. 4th 1297 (2009) .................................................11
23 Murillo v. Fleetwood Enterprises, Inc., 17 Cal.4th 985, 990 (1998) .......................................10
24 Norton v. Sup. Ct., 24 Cal.App.4th 1750, 1760-1761 (1994)............................................. 13, 15
25 Oregel v. American Isuzu Motors, Inc., 90 Cal. App. 4th 1094 (2001)....................................10
26 Stadish v. Sup. Ct. (Southern Calif. Gas Co.), 71 Cal. App. 4th 1130 (1999) ............................8
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PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO HIS REQUESTS FOR PRODUCTION OF DOCUMENTS,
SET ONE
1
2 STATUTES
3 Cal. Civ. Code § 1794(c) .........................................................................................................11
4 Cal. Civ. Code. § 1794(a) ........................................................................................................11
5 Cal. Civ. Proc. Code § 2017.010 ...............................................................................................9
6 Cal. Civ. Proc. Code § 2031.210 ...............................................................................................9
7 Cal. Civ. Proc. Code § 2031.210(d)...........................................................................................7
8 Cal. Civ. Proc. Code § 2031.240(b)...........................................................................................9
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PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO HIS REQUESTS FOR PRODUCTION OF DOCUMENTS,
SET ONE
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 This action alleges that Defendant FCA US, LLC (“Defendant” or “FCA”) violated
4 California’s Song-Beverly Consumer Warranty Act (“Song-Beverly Act” or “lemon law”) by
5 failing to repair Plaintiff’s 2018 Chrysler Pacifica vehicle (“subject Chrysler”) and its various
6 defects—including the Transmission and Electrical Defects—within a reasonable number of
7 attempts, and by refusing to repurchase the vehicle despite its knowledge that the subject
8 Chrysler suffers from those defects. Moreover, FCA committed fraud by allowing the subject
9 Chrysler to be sold without disclosing that the Chrysler, and its 9HP transmission and
10 Powertrain Control Module (“PCM”), is defective and susceptible to sudden, premature, and
11 catastrophic failure.
12 Accordingly, Plaintiff propounded Requests for Production of Documents, Set One
13 Nos. 1, 7, 17, 19, 20, 21, 22, 23, 24, 27, 29, 30, 31, 32, 33, 34, 42, 49, 50, 53, 74, 75, 76, 81,
14 and 82 (collectively, the “Requests”), which are broadly divisible into the following
15 categories: (1) those relating to FCA’s internal investigation and analysis of the Transmission
16 and Electrical Defects plaguing the subject Chrysler and establishing that FCA previously
17 knew of such Defects but nevertheless refused to repurchase the vehicle (i.e., RFP Nos. 1, 17,
18 19, 20, 21, 22, 23, 24, 27, 29, 30, 31, 32, 33, 34, 74, 75, 76, 81, 82); and (2) documents
19 concerning FCA’s warranty and vehicle repurchase policies, procedures, and practices (i.e.,
20 RFP Nos. 7, 42, 49, 50, 53).
21 The documents sought are indisputably relevant to Plaintiff’s claims that FCA
22 possessed prior knowledge of the Transmission and Electrical Defects (through, for example,
23 internal testing, bulletins issued to its dealers, and service campaigns); knew that the subject
24 Chrysler suffered from said Defects; knew it could not repair the subject Chrysler regardless
25 of how many repair visits were made; willfully violated the Song-Beverly Act by refusing to
26 repurchase the subject Chrysler; breached the implied warranty of merchantability when it
27 sold to Plaintiff a vehicle that contained known defects at the time of sale; and committed
28 fraud by failing to disclose to Plaintiff a material fact within its exclusive knowledge.
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PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO HIS REQUESTS FOR PRODUCTION OF DOCUMENTS,
SET ONE
1 FCA responded to this discovery in the same obstructionist, bad faith manner that it
2 routinely uses against California consumers who file Lemon Law claims. FCA “responded” to
3 the majority of the Requests with nothing more than “boilerplate” objections, e.g., form
4 objections that the Requests were allegedly “overly broad,” irrelevant or not reasonably
5 calculated to lead to the discovery of admissible evidence; or “vague,” “ambiguous,” lacking
6 specificity and particularity, and/or “not proportional to the needs of this case.” Moreover,
7 FCA has failed to produce any e-mails and other electronically stored information—reflecting
8 the investigation undertaken to issue the numerous TSBs and/or Recall campaigns applicable
9 for the Transmission and Electrical Defects.
10 In response to FCA’s abuse of the discovery process, Plaintiff made multiple attempts
11 to meet and confer with FCA by offering to (1) meet and confer on a search protocol
12 concerning the production of relevant, electronically stored information (ESI); (2)
13 telephonically meet-and-confer with Defendant concerning the issues underlying the present
14 discovery dispute; and (3) further clarify the scope of and proffer justification for the
15 Requests. Moreover, the parties agreed to enter into the Los Angeles Superior Court
16 (“LASC”) Model Protective Order – Confidential Designation Only to facilitate production of
17 documents containing information that FCA maintains, though has failed to establish, is
18 confidential, proprietary, or contains trade secrets; or should otherwise be subject to a
19 protective order.
20 Despite Plaintiff’s best efforts, FCA refuses to address any of Plaintiff’s positions in
21 substance or meaningfully supplement its responses and production of documents. Indeed,
22 throughout the meet-and-confer process, FCA has obstinately and steadfastly adhered to its
23 meritless objections and position that the information to which Plaintiff is entitled is limited in
24 scope.
25 Time and again, in case after case, other courts have, under circumstances nearly
26 identical to those here, compelled automobile manufacturers to produce responsive lemon law
27 documents. And despite evidence indicating the existence of the documents sought by
28 Plaintiff, FCA has unjustifiably withheld such documents. The only explanation for this
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PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO HIS REQUESTS FOR PRODUCTION OF DOCUMENTS,
SET ONE
1 behavior is that the withheld documents are adverse to FCA’s position and establish Plaintiff’s
2 claims and FCA’s liability.
3 Accordingly, Plaintiff seeks an order striking FCA’s meritless objections and
4 compelling FCA to produce further verified, Code-compliant responses to the Requests and all
5 responsive documents corresponding thereto (including e-mails and other ESI) within 10
6 calendar days of the Court’s order.
7 II. STATEMENT OF FACTS
8 A. Plaintiff’s Relevant Repair History 1
9 In or around May 2018, Plaintiff purchased the subject vehicle, a 2018 Chrysler Pacifica
10 (“subject Chrysler”). [Kim Decl. ¶ 3.] During the warranty period, the subject Chrysler
11 contained or developed defects, including the Transmission and Electrical Defects. According to
12 records currently in Plaintiff’s possession, Plaintiff presented the subject Chrysler to FCA’s
13 authorized dealership(s) on no fewer than eight (8) occasions with concerns related to the
14 Transmission and Electrical Defects. [Kim Decl. ¶¶ 3-13, Ex. 1.]
15 Specifically, Plaintiff found himself returning to FCA’s dealership(s) on or about July 18,
16 2018 (performance of Safety Recall U50, failure and/or replacement of the manual park release
17 override plug, performance of Safety Recall U64, failure of the Powertrain Control Module
18 [“PCM”] and/or software, PCM reprogramming with new software); October 15, 2018 (power
19 sliding doors intermittently inoperable, power seats intermittently inoperable); November 15,
20 2018 (spontaneous operation of the power sliding doors while driving, performance of
21 Technical Service Bulletin [“TSB”] 08-027-18, reprogramming of the Door Module Rear Left
22 and Door Module Rear Right with new software); January 4, 2019 (subject Chrysler towed in to
23 dealership, loss of power, storage of Diagnostic Trouble Codes [“DTCs”] U1465-00, P1DDE-
24 00, B210D-16, B21DD-84, B2199-16, B21DD-84, C1223-01, C2100-16, C2101-17, C2102-00,
25 C2222-68, and/or U0401-00; failure and/or replacement of the main and auxiliary batteries);
26 March 4, 2019 (intermittent spontaneous operation of the power sliding doors, power seat
27 1
For the sake of brevity, this section addresses the subject Chrysler’s relevant repair history in broad
28 strokes. The Chrysler’s repair history is addressed in greater detail in the Declaration of Esther Kim, filed
concurrently with and in support of this Motion.
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PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO HIS REQUESTS FOR PRODUCTION OF DOCUMENTS,
SET ONE
1 heaters, and automatic start/stop function; intermittent failure of the dash lights and back up
2 sensors; intermittent hesitation and rolling forward when engaging the transmission); March 28,
3 2019 (rolling forward when in reverse gear, sticking of the parking brakes); April 10, 2019
4 (rolling forward when in reverse gear); and May 21, 2019 (performance of Safety Recall V53,
5 intermittent failure of the battery ground connection, repairs attempted on the auxiliary battery
6 ground cable connection). [Kim Decl. ¶¶ 5-12.]
7 Indeed, Plaintiff presented the subject Chrysler no fewer than eight (8) times to FCA’s
8 dealership with complaints of symptoms related to the Transmission and Electrical Defects. In
9 response, the dealership verified Plaintiff’s complaints and performed various repairs, attempting
10 to fix the Defects. However, none of the repairs have permanently fixed the Transmission or
11 Electrical Defects. [Kim Decl. ¶ 13.]
12 B. FCA’s Awareness of the Transmission and Electrical Defects
13 FCA is aware of widespread and prevalent Transmission and Electrical Defects in 2018
14 Chrysler Pacifica vehicles, including the subject Chrysler. Based on consumer complaints,
15 FCA undoubtedly analyzed and investigated the transmission and electrical system
16 components in an effort to curb failure rates. FCA has issued numerous technical service
17 bulletins (TSBs), Campaigns, and/or Recalls, which acknowledge the existence of these
18 defects and presumably are the result of internal investigations, testing, and analysis. Once
19 TSBs are implemented, FCA then receives feedback as to the sufficiency of the repair
20 procedures. Consequently, if the procedures fail to repair the underlying problem, FCA may
21 then update these TSBs, one after the other, updating the procedures and/or parts.
22 Based on Plaintiff’s research, these are some 2 of the TSBs and Campaigns relating to
23 the Transmission and Electrical Defects that FCA has issued:
24 - TSB 08-027-18, dated in or around April 2018, and applied to the subject Chrysler
on or around November 15, 2018. It is intended to address customer complaints
25 regarding the power sliding doors reopening when cinched or almost closed, and
calls for reprogramming the Door Module Rear Left and the Door Module Rear
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Right with new software. [Kim Decl. ¶ 36; Ex. 14.]
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In the interests of brevity, this is an abbreviated list of the TSBs, Campaigns, and Recalls applicable to
28 the subject Chrysler. A more detailed list is included in the Declaration of Esther Kim filed concurrently with
this motion.
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PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO HIS REQUESTS FOR PRODUCTION OF DOCUMENTS,
SET ONE
1
- Safety Recall U50, dated in or around June 2018, and applied to the subject Chrysler
2 on or about July 18, 2018. It is intended to address customer complaints regarding a
failure of the manual park release override plug and increased risk of inadvertent
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vehicle movement. It calls for replacing the shifter override plug. [Id. at ¶ 37; Ex.
4 15.]
5 - Safety Recall U64, dated in or around June 2018, and applied to the subject Chrysler
on or about July 18, 2018. It is intended to address customer complaints regarding a
6 failure of the Powertrain Control Module (“PCM”) and/or its software in relation to
7 regulating vehicle acceleration. It calls for reprogramming the PCM with new
software. [Id. at ¶ 38; Ex. 16.]
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- Safety Recall U87, dated in or around October 2018, and intended to address
9 customer complaints regarding internal failure of the PCM, a no-start or start-and-
stall condition, and/or stalling while driving. It calls for replacing and
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reprogramming the PCM. [Id. at ¶ 40; Ex. 18.]
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- Safety Recall V53, dated in or around May 2019, and applied to the subject Chrysler
12 on or about May 21, 2019. It is intended to address customer complaints regarding
intermittent failure of the battery ground connection and potential loss of motive
13 power. It calls for inspecting and cleaning the contact surfaces and reassembling the
14 ground joint to specification. [Id. at ¶ 42; Ex. 20.]
15 The foregoing list of TSBs, Campaigns, Recalls and/or Upgrades is not exhaustive.
16 Each and every TSB or Recall issued by FCA is presumably the result of various monitoring
17 efforts, internal investigations, analyses, and assessments to track customer complaints,
18 monitor various repairs, investigate returned parts, and develop new repair procedures based
19 on FCA’s then-prevailing theories about the root cause of the failures.
20 The Requests in this case seek those internal investigations and assessments performed
21 by FCA regarding 1) whether earlier TSBs were unsuccessful; 2) what considerations were
22 accounted for in updating the technical procedures; 3) what types of failures were observed
23 and accounted for by FCA, etc. All this information is relevant as to whether 1) the subject
24 Chrysler suffered from a defect; 2) based on its internal testing and investigation FCA could
25 repair it to conform to warranty within a reasonable number of opportunities; 3) FCA
26 provided its repair facilities with sufficient literature and parts to complete repairs during the
27 warranty period; 4) FCA knew it could not repair the subject Chrysler but refused to
28 repurchase it nonetheless; and 5) FCA’s knowledge prior to Plaintiff’s acquisition of the
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PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO HIS REQUESTS FOR PRODUCTION OF DOCUMENTS,
SET ONE
1 subject Chrysler that the vehicle, and its 9HP transmission and PCM, are defective and
2 susceptible to sudden, premature, and catastrophic failure.
3 C. Plaintiff’s Prelitigation Request for Repurchase
4 Dissatisfied with FCA’s unsuccessful efforts to repair the subject Chrysler, Plaintiff (or
5 someone acting on Plaintiff’s behalf) contacted FCA in or around April 2019 to advise it of
6 the problems he experienced with the vehicle, including numerous visits to FCA’s dealership,
7 the dealership’s failure to resolve his concerns, and to request repurchase of the subject
8 Chrysler (Case No. 583136763). Despite FCA’s internal awareness of the many defects
9 plaguing the Chrysler, FCA failed to repurchase the vehicle. [Kim Decl. ¶ 14.]
10 D. Procedural History
11 This action was filed on August 2, 2019, alleging various Song-Beverly Act claims,
12 including breach of express and implied warranties, as well as fraud by omission based on
13 FCA’s failure to disclose that the subject Chrysler, and its 9HP transmission and PCM, is
14 defective and susceptible to sudden, premature, and catastrophic failure. On or about October 4,
15 2019, FCA filed a demurrer to the fraud cause of action in Plaintiff’s Complaint and a motion to
16 strike Plaintiff’s prayer of punitive damages. On January 15, 2020, Plaintiff filed a First
17 Amended Complaint as a matter of right. On or about March 20, 2020, Defendant filed a
18 demurrer to the fraud cause of action in Plaintiff’s First Amended Complaint and a motion to
19 strike Plaintiff’s prayer of punitive damages. Plaintiff filed his oppositions thereto on April 23,
20 2020. [Kim Decl. ¶¶ 15-18.]
21 E. Plaintiff’s Discovery Requests
22 On September 30, 2019, Plaintiff propounded Requests for Production of Documents,
23 Set One (“RFP(1)”), on FCA seeking documents relating to: (1) FCA’s internal investigations
24 and analyses of the Transmission and Electrical Defects plaguing the subject Chrysler and
25 establishing that FCA previously knew of said Defects but nevertheless refused to repurchase
26 the vehicle (i.e., RFP Nos. 1, 17, 19-24, 27, 29-34, 74, 75, 76, 81, 82) and (2) FCA’s warranty
27 and vehicle repurchase policies, procedures, and practices. [Kim Decl. ¶¶ 19-20, Ex. 2.]
28 ///
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PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO HIS REQUESTS FOR PRODUCTION OF DOCUMENTS,
SET ONE
1 F. FCA’s Insufficient Responses and Boilerplate Objections
2 On November 4, 2019, FCA mail served its responses to RFP(1). [Kim Decl. ¶ 21, Ex.
3 3.] In its responses, FCA refused to produce any e-mails, memoranda, data, investigations,
4 warranty claims, customer complaints, or parts testing that could help Plaintiff understand the
5 circumstances behind the recurring symptoms, issues, or problems experienced with the
6 subject Chrysler, as well as FCA’s knowledge or awareness of the defective nature of the
7 subject Chrysler and vehicles of the same make, model, and year as the subject Chrysler. FCA
8 also refused to produce all documents concerning Plaintiff’s repurchase request and FCA’s
9 refusal thereof. [Id. ¶ 22.] There is no indication that appropriate searches for ESI, e-mail
10 communications, and other data were conducted. This is especially concerning given the fact
11 that not a single e-mail, memo, or internal communication was produced.
12 FCA’s boilerplate objections are addressed in detail in Plaintiff’s accompanying
13 Separate Statement, and in the “Legal Analysis” section, infra. For the moment, it is sufficient
14 to say that FCA’s position is that any discovery as to anything other than Plaintiff’s individual
15 complaints, and as to anything other than the subject Chrysler, is “unduly burdensome,”
16 “vague,” “ambiguous,” “overly broad,” lacking specificity or particularity, neither relevant to
17 the subject matter of the present action nor reasonably calculated to lead to the discovery of
18 admissible evidence, and/or “not proportional to the needs” of this action. Phrased differently,
19 FCA’s position is that the documents underlying its multiple, successive TSBs about the
20 Transmission and Electrical Defects plaguing the subject Chrysler (e.g., complaints from other
21 consumers; FCA’s response to those complaints; FCA’s attempts to come up with a “fix” for
22 the problems with the Defects) are not discoverable. Not so.
23 Of FCA’s many boilerplate objections, one is premised on undue burden. A responding
24 party who does not search an ESI source on the grounds of undue burden or expense, or in the
25 absence of an agreement with the demanding party or by court order must “identify in its
26 response the types or categories of sources of electronically stored information that it asserts
27 are not reasonably accessible.” Civ. Proc. Code §2031.210(d). A failure to do so waives “any
28 objections it may have relating to that electronically stored information.” Id. See also Stadish
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PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO HIS REQUESTS FOR PRODUCTION OF DOCUMENTS,
SET ONE
1 v. Sup. Ct., 71 Cal. App. 4th 1130, 1141 (1999) (a party whose response fails to set forth a
2 particular ground for objection waives its right to raise that objection later). Having failed to
3 make any attempt to articulate the basis for its refusal to access discoverable information, FCA
4 has waived any objections it may assert relating to ESI.
5 Any claim of vagueness, ambiguity, and/or overbreadth with respect to the defined terms
6 “Transmission” Defect and “Electrical” Defect is similarly disingenuous as Plaintiff defined
7 these terms at the forefront of the Requests. These definitions were crafted based on the subject
8 Chrysler’s repair history; Plaintiff’s understanding and articulation of the symptoms of the
9 Defects; and FCA’s own articulation of the Defects as used in its numerous TSBs and/or
10 recalls. [Kim Decl. ¶¶ 3-13, 34-45; Ex. 1, 13-23.] Furthermore, they