Gerardo Trujillo Morales et al vs Jaguar Land Rover North America LLC et al

Case Number

23CV01963

Case Type

Hearing Date / Time

Mon, 10/30/2023 - 10:00

Nature of Proceedings

Motion: Compel

Tentative Ruling

Gerardo Trujillo Morales, et al. v. Jaguar Land Rover North America, LLC, et al.                                                                                        

Case No. 23CV01963

           

Hearing Date: October 30, 2023                                             

HEARING:              Plaintiffs’ Motion to Compel Further Responses to Requests For Production of Documents (Set One) as to Defendant Jaguar Land Rover North America, LLC

ATTORNEYS:        For Plaintiffs Gerardo Trujillo Morales and Luis Gerardo Morales: Kevin Y. Jacobson, Joshua Kohanoff, Quill & Arrow, LLP

                        For Defendants Jaguar Land Rover North America, LLC and British Motorcars Ventura, Inc. dba Jaguar Land Rover Ventura: Matthew C. Wolf, Ali Abouesh, Turner Henningsen Wolf & Vandenburg, LLP                       

TENTATIVE RULING:

 

1. Plaintiffs’ motion to compel further responses to requests for production of documents (set one), as to defendant Jaguar Land Rover North America, LLC, is continued to January 8, 2024.

2. Counsel shall meet and confer, in good faith, either in-person, virtually, or telephonically no later than November 10, 2023, to resolve, or narrow, their discovery dispute.

            a. Counsels’ meet and confer shall specifically include what documents are discoverable in this matter, which objections are appropriately brought as to each request, and the appropriateness of a stipulated protective order.

3. If the parties fully resolve the discovery dispute, counsel for plaintiffs is to notify the court no later than November 24, 2023.

4. If the parties are unable to completely resolve the dispute, plaintiffs shall file and electronically serve supplemental points and authorities, addressing any unresolved issues, along with an updated meet and confer declaration of counsel, no later than November 24, 2023. Defendants shall file and electronically serve any supplemental opposition no later than December 15, 2023. Plaintiffs shall file and electronically serve any supplemental reply no later than December 22, 2023. The supplemental documents should specifically address each disputed request rather than repeat the same legal authority and arguments regarding the scope of discovery and objections in general terms.

Background:

This action was commenced on May 4, 2023, by the filing of the complaint by plaintiffs Gerardo Trujillo Morales and Luis Gerardo Morales (collectively “plaintiffs”) against defendants Jaguar Land Rover North America, LLC and British Motorcars Ventura, Inc. dba Jaguar Land Rover Ventura (collectively “defendants”). The complaint alleges causes of action as follows: (1) Violation of Song-Beverly Act – Breach of Express Warranty; (2) Violation of Song-Beverly Act – Breach of Implied Warranty; (3) Violation of the Song-Beverly Act Section 1793.2; and (4) Negligent Repair.

As alleged in the complaint:

On April 16, 2018, plaintiffs leased a 2018 Land Rover Range Rover and Jaguar Land Rover North America, LLC issued a written warranty. (Complaint, ¶ 9.) The warranty was not issued by the selling dealership. (Ibid.) “Jaguar Land Rover North America, LLC warranted the Subject Vehicle and agreed to preserve or maintain the utility or performance of Plaintiffs’ vehicle or to provide compensation if there was a failure in such utility or performance. In connection with the lease, Plaintiffs received various warranties, inter alia, a 4-year/50,000 mile express bumper to bumper warranty, a 4-year/50,000 mile powertrain warranty which, inter alia, covers the engine and the transmission, as well as various emissions warranties that exceed the time and mileage limitations of the bumper to bumper and powertrain warranties.” (Id. at ¶ 10.)

“The Subject Vehicle was delivered to Plaintiffs with serious defects and nonconformities to warranty and developed other serious defects and nonconformities to warranty including, but not limited to, structural, electrical, emission, engine, suspension, and steering system defects.” (Id. at ¶ 11.) “The foregoing defects and nonconformities to warranty manifested themselves in the Subject Vehicle within the applicable express warranty period. The nonconformities substantially impair the use, value, and/or safety of the vehicle.” (Id. at ¶ 23.)

“Plaintiffs delivered the vehicle to an authorized Jaguar Land Rover North America, LLC repair facility for repair of the nonconformities.” (Id. at ¶ 24.) “Defendant was unable to conform Plaintiffs’ vehicle to the applicable express warranty after a reasonable number of repair attempts.” (Id. at ¶ 25.) “Notwithstanding Plaintiffs’ entitlement, Defendant Jaguar Land Rover North America, LLC has failed to either promptly replace the new motor vehicle or to promptly make restitution in accordance with the Song-Beverly Act.” (Id. at ¶ 26.)

Defendants answered the complaint on August 28, 2023, with a general denial and 29 affirmative defenses.

On June 22, 2023, plaintiffs propounded discovery, including requests for production of documents (“RFPs”). (Kohanoff Dec., ¶ 18 & Exh. 4.)

On July 25, 2023, defendants served responses to the RFPs, and served verifications on July 27, 2023. (Kohanoff Dec., ¶¶ 20, 21 & Exhs. 5, 6.)

On July 28, 2023, plaintiffs’ counsel sent a meet and confer letter to defense counsel regarding claimed deficiencies to the RFP responses. (Kohanoff Dec., ¶ 25 & Exh. 7.) On August 4, 2023, defendants responded to plaintiffs’ meet and confer letter. (Kohanoff Dec., ¶ 27 & Exh. 8.)

Plaintiffs filed the present motion to compel further responses to the RFPs on September 11, 2023. Plaintiffs seek an order that defendants provide further responses to RFP Nos. 1 through 37. Defendants oppose the motion. No sanctions are requested by any party.

Analysis:

As an initial observation: “We recognize that it is very common for [attorneys] to include argument in their declarations (we know it is done all the time, and we do not want to single out the trial lawyers in this regard), but it is a sloppy practice which should stop. Even at its most benign, it is a practice that forces the trial and appellate courts, and opposing counsel, to sort out the facts that are actually supported by oath from material that is nothing more than the statement of an opinion ostensibly under oath. More fundamentally, however, it makes a mockery of the requirement that declarations be supported by statements made under penalty of perjury. The proper place for argument is in points and authorities, not declarations.” (In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 30, fn. 3.)

In addition to the numerous arguments contained in the declaration of plaintiffs’ counsel, he makes multiple representations based on his review of records and conversations with others. An attorney is competent to recite events occurring during the course of the litigation. An attorney’s declaration of what the client’s testimony would be, based on the attorney’s discussion with the client and an investigation of the facts, is not competent. (See Donnelly v. Ayer (1986) 183 Cal.App.3d 978, 984.) Counsel is advised that any future declarations filed with the court must comply with law, omit argument, and be based on personal knowledge.

Further: Motion papers must comply with the formatting requirements of the California Rules of Court. Specifically, “[u]nless they are submitted by a self-represented party, electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.” (Cal. Rules of Court, rule 3.1110 (f)(4).) The lengthy 107 pages of exhibits filed in support of plaintiffs’ motion are not bookmarked. Electronic bookmarks are important to the court in finding specific pages in voluminous documents. Plaintiffs’ counsel is reminded of their obligation to comply with the California Rules of Court.

Meet and Confer:

Defendants contend that plaintiffs have failed to meet and confer in good faith regarding defendants’ responses to the RFPs.

“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040, italics added.) “A determination of whether an attempt at informal resolution is adequate . . . . involves the exercise of discretion.”  (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016.)

As noted above, plaintiffs sent a meet and confer letter to counsel for defendants on July 28, 2023.

The court has reviewed the 22-page meet and confer letter. Plaintiffs’ meet and confer letter is quite obviously a form letter, primarily discussing  the validity of objections in general, which has been slightly modified to address some of the responses in dispute. The meet and confer letter addresses requests Nos.: (1) 4, 7, 8, 10 (Exh. 7, p. 7.); (2) 16, 17 (Id. at p. 8.); (3) 18, 20-23, 25, 26, 27, 30, 31 (Id. at p. 9.); 19, 24, 28, 29 (Id. at p. 10.); and 33 (Id. at p. 11.) Plaintiffs failed to address requests Nos. 1, 2, 3, 5, 6, 9, 11, 12, 13, 14, 15, 32, 34, 35, 36, and 37.

Defendants’ August 4, 2023, correspondence in response to plaintiffs’ meet and confer letter states, among other things: “As noted herein, there are a number of discovery requests (identified specifically below) that we believe require a short telephonic meet and confer in order to resolve. Please contact the undersigned regarding your availability this week for a phone call. We agree to provide any amended responses and supplemental production of documents within two-weeks of our telephonic meet and confer.” Defendants claim to have produced responsive documents to most of the requests, offer to further discuss the discoverability of other requested documents, and request that the parties enter into a stipulated protective order as to some of the responsive documents. Defendants conclude: “I look forward to our further meet and confer on this matter. I am available in the afternoons for the upcoming week. Please let me know a day and time works best with you. Additionally, please let me know if any further issues remain – it is our hope that we can work through all discovery disputes without court intervention and, to that end, we remain willing to further meet and confer as necessary.”

Rather than respond to defendants’ correspondence, and participate in further meeting and conferring, plaintiffs filed the present motion.

By way of their reply brief, plaintiffs provide no argument claiming to have engaged in a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.

Plaintiffs’ meet and confer is lacking. Not only did they fail to address several of the specific RFPs included in their motion; they failed to further meet and confer when defendants clearly and unequivocally represented that they wished to meet and confer further to resolve the dispute short of law and motion practice.

“[T]he instant case requires reconciliation of two key principles of California discovery law: the principle of liberal construction in favor of discovery versus the requirement of informal efforts to resolve disputes. Reconciling these principles while recognizing both the broad range of a trial judge’s discretion and the proper judicial goal of minimizing unnecessary expense requires attention to the question of remedy when an effort at informal resolution is found wanting. Thus discovery should not be automatically denied in such circumstances; instead the trial court should consider whether it would be more appropriate to specify additional efforts which will be required before the court will turn to the merits of the discovery dispute.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 434-435.)

As the court finds that plaintiffs failed to comply with their statutory duty to meet and confer in good faith, the court will continue the hearing on the motion and order the parties to further meet and confer, in good faith, in an attempt at resolution of their discovery dispute.