Alfreda Smith vs. Nissan North America Inc

34-2022-00325547-CU-BC-GDS: Alfreda Smith vs. Nissan North America Inc 08/17/2023 Hearing on Motion to Compel Further Discovery Responses to Requests for Production of Documents, Set One in Department 53

Plaintiff Alfreda Smith's motion to compel further responses to Plaintiff’s requests for production of documents, set one, is ruled upon as follows. Yet again, and despite being notified countless times across multiple cases by this Court, the notice of motion filed by Plaintiff’s counsel does not provide notice of the Court’s tentative ruling system as required by Local Rule 1.06(D). The Court notes that Plaintiff’s counsel’s repeated failures suggest that Plaintiff’s counsel is simply ignoring and failing to comply with the Court’s rulings.

The Court advises Plaintiff’s counsel that its repeated failures may lead to the future imposition of sanctions and/or denial of motions. As with prior rulings on Plaintiff’s motions to compel, Plaintiff’s counsel is ordered to notify Defendant’s counsel immediately of the tentative ruling system and to be available at the hearing, in person, via Zoom or by telephone, in the event Defendant’s counsel appears without following the procedures set forth in Local Rule 1.06(B). Plaintiff filed this lemon law action on August 22, 2022 against Defendants Nissan North America, Inc. (“Nissan”) and Nissan of Elk Grove for violation of statutory obligations relating to Plaintiff’s purchase of Nissan Sentra (the “Subject Vehicle”) which allegedly had a defective engine/transmission, and Nissan’s alleged failure to repair/repurchase the Subject Vehicle or fulfill other statutory duties related the Subject Vehicle.

On January 24, 2023, Plaintiff served Defendant Nissan with its first set of requests for production of documents. Plaintiff seeks documents which, as characterized by Plaintiff, (1) relate to Nissan’s internal investigation and analysis of transmission defects and engine defects of the Subject Vehicle, in an attempt by Plaintiff to establish Nissan previously knew about defects but nevertheless refused to repurchase the Vehicle (i.e., Nos. 8, 18, 20, 32, 44, 56, 125, 127, 128, 131, 133, and 134); and (2) relate to Nissan’s warranty and vehicle repurchase policies, procedures, and practices (i.e., Nos. 109, 111, and 122). (Tirmizi Decl., ¶¶ 12-13, Ex. 2; Memo.

Of P’s and A’s, 6:16-21.) On February 27, 2023, Nissan served objections in response to Plaintiff’s requests, including Request Nos. 8, 18, 20, 32, 44, 56, 125, 127, 128, 131, 133, and 134, and to 109, 111, and 122. Nissan interposed numerous objections to the requests for production, including objections based on relevance, burden and oppression and trade secrets. The parties met and conferred regarding the above responses, and Nissan served Plaintiff with supplemental responses on May 12, 2023, but the above enumerated responses were left in dispute. (Tirmizi Decl., ¶ 20.)

On May 15, 2023, Plaintiff filed a stipulated protective order in this action. On that same date, Plaintiff moved the Court to compel further responses to the above

34-2022-00325547-CU-BC-GDS: Alfreda Smith vs. Nissan North America Inc 08/17/2023 Hearing on Motion to Compel Further Discovery Responses to Requests for Production of Documents, Set One in Department 53

enumerated requests. As a preliminary matter, it is important to note the scope of Plaintiff’s present motion. As indicated in their Notice of Motion and Motion, this is a motion seeking to compel “Plaintiff’s Further Responses to Requests for Production of Documents, Set One.” Plaintiff’s motion does not seek to compel compliance with an agreement to produce and thus, does not compel actual production of records. Further, the motion is made upon its filing. Unless the motion is withdrawn, it is not made “moot” by any subsequent written responses or actual production of documents by Nissan.

Thus, Nissan’s Counsel’s attestation in his declaration regarding the number of documents that have been produced and regarding documents produced after the filing of this motion is irrelevant. Also irrelevant are Plaintiff’s arguments regarding a deficiency in the documents that have been produced. Again, this is not a motion to compel production nor does the motion change in scope based upon occurrences after the motion is filed. If Plaintiff takes issue with any production of documents, they are required to meet and confer, and only if the parties do not resolve their issues may Plaintiff move to compel production of documents.

As to Nissan’s responses to Plaintiff’s requests, pursuant to Code of Civil Procedure section 2031.210: (a) The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following: (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities. (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item. (3) An objection to the particular demand for inspection, copying, testing, or sampling.

Request No. 8 Plaintiff’s request no. 8 seeks the warranty repair histories for the Subject Vehicle. Nissan’s response includes, “After a diligent search and reasonable inquiry, Nissan will comply with this Request in full and will produce all documents in the demanded category that are in Nissan’s possession, custody, and control and to which it has no objection.” This response is code compliant pursuant to Code of Civil Procedure section (a)(1). While the parties may have a dispute as to the sufficiency of Nissan’s production to this request,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00325547-CU-BC-GDS: Alfreda Smith vs. Nissan North America Inc 08/17/2023 Hearing on Motion to Compel Further Discovery Responses to Requests for Production of Documents, Set One in Department 53

that is not the subject of the instant motion. Nissan’s response agrees to production and is code compliant pursuant to Code of Civil Procedure section (a)(1). Plaintiff’s request for further response to Request No. 8 is DENIED. Request Nos. 18, 20, 32, 44, 56, 122, 125, 127, 128, 131, 133, and 134 Plaintiff argues that she is entitled to production of documents relating to Nissan’s internal investigation and analysis of engine and transmission defects of the Subject Vehicle. Plaintiff’s requests include seeking the workshop manual for Nissan vehicles with the same engine as the Subject Vehicle (No. 18); documents concerning internal analysis or investigation regarding transmission defects in Nissan vehicles equipped with the same transmission as the Subject Vehicle (No. 20); all documents concerning failure rates of Nissan vehicles equipped with the same transmission as the Subject Vehicle (No. 32); all documents concerning internal analysis or investigation regarding engine defects in Nissan vehicles with the same transmission as the Subject Vehicle (No. 44); all documents concerning failure rates of Nissan vehicles equipped with the same transmission as the subject vehicle as a result of an engine defect (No. 56); recall policies and procedures (No. 122); all documents regarding any communications with any governmental agency or entity regarding transmission effects in Nissan vehicles that are equipped with the same transmission as the Subject Vehicle (No. 125); all Early Warning Reports Nissan submitted to NHTSA concerning Nissan vehicles that are equipped with the same transmission as the Subject Vehicle (No. 127); all Transportation Recall Enhancement, Accountability, and Documentation (“TREAD”) reports Nissan submitted concerning vehicles equipped with the same transmission as the Subject Vehicle (No. 128); all documents regarding any communications between Nissan and any government agency or entity regarding engine defects in Nissan vehicles that are equipped with the same engine as the Subject Vehicle (No. 131), all early Warning Reports Nissan submitted to NHTSA concerning Nissan vehicles equipped with the same engine as the Subject Vehicle (No. 133); and all TREAD reports Nissan submitted concerning Nissan vehicles that are equipped with the same engine as the Subject Vehicle (no. 134).

Nissan makes numerous objections and states that it is unable to comply with each of the above enumerated requests. Nissan argues that these requests are overbroad, vague, unwarranted, and not calculated to lead to the discovery of admissible evidence. The Court finds that Plaintiff is entitled to information about the engine and transmission defects regarding other identical (same year, make, model, in California) Nissan Sentra vehicles. Indeed, in the discovery context, information is relevant “if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement. [citations omitted] Admissibility is not the test and information, unless privileged, is discoverable if it might

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00325547-CU-BC-GDS: Alfreda Smith vs. Nissan North America Inc 08/17/2023 Hearing on Motion to Compel Further Discovery Responses to Requests for Production of Documents, Set One in Department 53

reasonably lead to admissible evidence.” (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1611-1612 [emphasis in original].) In fact, evidence regarding other vehicles with similar defects as Plaintiff's could potentially be admissible at trial in a lemon law action. (Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 154; see also Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 971.) Here, for example, the subject documents could lead to the discovery of admissible evidence regarding Defendant's knowledge of the Defects, that Defendant lacks the means to fix the defects and nevertheless refuses to repurchase Plaintiff's vehicle.

Such information would certainly be relevant to Plaintiff’s claim for civil penalties under Civil Code § 1794(c) given that Plaintiff must show a willful failure by Defendant in complying with its obligations under the Song-Beverly Act. This includes ESI. (Santana v. FCA US. LLC (2020) 56 Cal. App.5 334, 347.) The Court's imposed limitation of the requests above to cover only similar defects in identical (same year, make, model, in California) Nissan Sentra vehicles effectively addresses Defendant's claim that the requests here are overbroad.

Further, the defects were adequately defined in the requests and were tied to Plaintiff's vehicle's repair history. The overbroad and vague objections are overruled. Defendant's burdensome and oppression objections are overruled. Indeed, undue burden objections must be accompanied by a specific factual showing setting forth the amount of work necessary to respond to the subject discovery. (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417-418.) Defendant has failed to submit any declaration suggesting that responding to these requests would be burdensome and oppressive.

Further, any burden is lessened due to the fact that as set forth above the discovery is limited to only similar defects in identical vehicles in California and there is no showing as to any burden associated with searching records related only to vehicles sold in California. The claim of burden is unpersuasive and is overruled. To the extent that any responsive information contains customer identifying information, that information shall be redacted. In addition, while Defendant interposed objections based on attorney-client privilege and work product privilege, it failed to indicate whether any documents were withheld on this basis.

To the extent Defendant withheld any documents on the basis of the privileges, it must provide further responses that provide sufficient factual information for other parties to evaluate the merits of that claim, including if necessary, a privilege log. (CCP § 2031.240.) Plaintiff’s motion compelling further responses to Plaintiff’s Request Nos. 18, 20, 32, 44, 56, 122, 125, 127, 128, 131, 133, and 134 is GRANTED. Defendant's boilerplate objections are overruled. Defendants are to serve further verified code-compliant responses by September 7, 2023.

Request No. 109 Request No. 109 seeks, “All DOCUMENTS that evidence, describe, refer, or relate to YOUR rules, policies, or procedures since 2016 concerning the issuance of refunds to buyers or providing replacement vehicles to buyers in the State of California under the Song-Beverly Consumer Warranty Act.”

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00325547-CU-BC-GDS: Alfreda Smith vs. Nissan North America Inc 08/17/2023 Hearing on Motion to Compel Further Discovery Responses to Requests for Production of Documents, Set One in Department 53

Nissan responds as follows: “After a diligent search and reasonable inquiry, Nissan will comply with this Request in full and directs Plaintiff to the list of documents in its possession, custody, or control identified in Nissan’s response to Plaintiff Request for Documents, Set One, Request No. 108. Nissan otherwise objects to the definition of the term “YOU” and “YOUR” because it is overly broad and compound, and includes entities not owned or operated by Nissan and individuals or entities who are not agents of Nissan and not within Nissan’s control.” Nissan’s response agrees to production and is code compliant pursuant to Code of Civil Procedure section (a)(1).

While the parties may have a dispute as to the sufficiency of Nissan’s production to this request, that is not the subject of the instant motion. Plaintiff’s request for further response to Request No. 109 is DENIED. Request No. 111 Request no. 111 seeks, “The Warranty Policy and Procedure Manual published by YOU and provided to YOUR authorized repair facility(s), within the state of California, from 2016 to the present. [This request will be understood to include production of any and all versions of such manual as distributed to YOUR dealerships during the relevant time frame.]” Nissan responds as follows: “After a diligent search and reasonable inquiry, Nissan will comply with this Request in full and will produce all documents the demanded category that are in Nissan’s possession, custody, and control and to which it has no objection.

Accordingly, Nissan will produce Document No. AA (Nissan Assurance Products Resource Manual (“APRM”). Nissan otherwise objects to the definition of the terms “YOU” and “YOUR” because it is overly broad and compound, and includes entities not owned or operated by Nissan and individuals or entities who are not agents of Nissan and not within Nissan’s control.” Nissan’s response agrees to production and is code compliant pursuant to Code of Civil Procedure section (a)(1). While the parties may have a dispute as to the sufficiency of Nissan’s production to this request, that is not the subject of the instant motion.

Plaintiff’s request for further response to Request No. 111 is DENIED. Additionally, although this is the first discovery motion to compel filed in this action to date, the Court anticipates that multiple additional motions will be filed in this action, based on the Court's prior experience with lemon law actions. The Court anticipates that there will be multiple issues to be resolved, motions to be heard, the present motion is only one in a continuum of many and that the number of documents to be reviewed, with assertions of privilege will make the inquiry

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00325547-CU-BC-GDS: Alfreda Smith vs. Nissan North America Inc 08/17/2023 Hearing on Motion to Compel Further Discovery Responses to Requests for Production of Documents, Set One in Department 53

inordinately time consuming. (CCP §639(e).) Therefore, should that prove to be the case, the parties should consider stipulating to the appointment of a discovery referee who can more quickly and efficiently address the parties' needs. If they agree to having someone act as discovery referee, the parties may prepare and submit a stipulation and proposed order pursuant to Code of Civil Procedure §638 (using Judicial Council approved forms ADR-109 and ADR- 110). The parties are advised that if they are unable to agree on a referee, the Court may in the future appoint one on its own motion pursuant to Code of Civil Procedure §639. This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)