Judge: Ashfaq G. Chowdhury, Case: 22GDCV00768, Date: 2024-02-23 Tentative Ruling

Case Number: 22GDCV00768    Hearing Date: February 23, 2024    Dept: E

Hearing Date: 02/23/2024 – 8:30am
Case No: 22GDCV00768
Trial Date: 03/11/2024
Case Name: KHACHIK AYVAZIAN, an individual v. VOLKSWAGEN GROUP OF AMERICA, INC., a corporation; GALPIN VOLKSWAGEN, a business entity unknown; and DOES 1-40 inclusive

TENTATIVE RULING ON MOTION TO COMPEL FURTHER RESPONSES

BACKGROUND
On 10/27/2022, Plaintiff, Khachik Ayvazian, filed the Complaint in this action against Volkswagen Group of America, Inc., a corporation; Galpin Volkswagen, a business entity, form unknown; and DOES 1-40 inclusive.

The first three causes of action – (1) Violation of Song-Beverly Act – Breach of Express Warranty, (2) Violation of Song-Beverly Act – Breach of Implied Warranty, and (3) Violation of Song-Beverly Act – Section 1793.2 – are alleged against Defendant Volkswagen Group of America, Inc.

The fourth cause of action for negligent repair is alleged against Galpin Volkswagen.

Plaintiff alleges that on or about November 8, 2019, Plaintiff leased the Subject Vehicle, a 2019 Volkswagen Jetta. (See Compl. ¶¶7-9.)

RELIEF REQUESTED
Plaintiff, Khachik Ayvazian, moves the Court for an order compelling Defendant, Volkswagen Group of America, Inc. (“VW”), to serve further responses to Plaintiff’s Second Set of Requests for Production (“RFP”) Nos. 38-58.

Plaintiff also move for an order that VW and/or its counsel pay to the moving party the sum of $3,210.00 as the reasonable costs and attorney fees incurred by Plaintiff for these proceedings. (Decl. Mellgren, ¶ 6, Ex. G.)

This motion is based on Code of Civil Procedure §§ 2031.210, subd. (a) and 2031.310, subd. (a) due to (what Plaintiff characterizes as) VW’s evasive and incomplete statements in response to the written discovery requests. A declaration conforming to Code of Civil Procedure section 2016.040 was concurrently filed. Plaintiff states VW has not produced all documents in response to these RFPs.

Procedural

Moving Party: Plaintiff, Khachik Ayvazian
Responding Party: Defendant, Volkswagen Group of America, Inc. (VW or Defendant)

Proof of Service Timely Filed (CRC Rule 3.1300): Ok

16/21 Court Days Lapsed (CCP 1005(b)):No/Yes. This motion was served electronically on January 29, 2024. Sixteen court days before the hearing would be January 30, 2024. However, since 2 calendar days must be added because service was done electronically, the motion would have had to have been served by January 28, 2024. However, “Plaintiff’s Notice After Post Mediation Status Conference Hearing” filed on 2/5/2024 indicates that the Court advanced this hearing from March 15, 2024 to February 23, 2024. This notice indicates that Defendant objected, but the Court ordered the hearing date advanced to the instant hearing date.

Proper Address (CCP §1013, §1013a, §1013b): Ok

Moving Papers: Notice/Motion; Separate Statement; Mellgren Decl.; Proof of Service; Notice After Post Mediation Status Conference

Opposition Papers: Opposition; Alegadro Decl.; Separate Statement; Lewis Decl.

Reply Papers: No Reply submitted as of 2/21/2024. Reply would have been due on 2/15/2024.

LEGAL STANDARD – COMPEL FURTHER – REQUESTS FOR PRODUCTION

Under CCP § 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action..., if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”  The Section specifically provides that “[d]iscovery may relate to the claim or defense of the party seeking discovery or of any other party to the action,” and that discovery “may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition and location of any document, electronically stored information, tangible thing, or land or other property.”

CCP § 2031.310(a) provides that a party demanding a document inspection may move for an order compelling further responses to the demand if the demanding party deems that:

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

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

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

Under CCP § 2031.310 (b)(1), “The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.” 

“In the more specific context of a demand for production of a tangible thing, the party who asks the trial court to compel production must show “good cause” for the request—but unless there is a legitimate privilege issue or claim of attorney work product, that burden is met simply by a fact-specific showing of relevance.” (TBG Ins. Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.)

PROCEDURAL ANALYSIS

45-Day Requirement

Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand. (CCP §2031.310(c).)

This motion appears timely.

Meet and Confer

“The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP § 2031.310(b)(2).)

Here, Plaintiff’s counsel alleged she met and conferred. (Mellgren Decl. ¶4.) Opposition’s argument that Plaintiff did not meet and confer is unavailing.

Discovery Cutoff

“Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” (CCP § 2024.020(a).)

Here, the parties are to address at the hearing whether or not the hearing on this motion complies with the discovery cutoff.

TENTATIVE RULING

The instant motion pertains to RPDs, Set Two, numbers 38-58.

As to RPDs 38-40, and 43-44, the Court sustains Defendant’s objections as to vague and ambiguous. Defendant explains how these requests use terms that are not clearly defined such as random mixes of numbers where it is unclear what the numbers are associated with.

Further, as to 38-40 and 43-57, the Court sustains Defendant’s objections as to overbroad because the requests are not limited to vehicles in California.

As to 58, the Court also sustains Defendant’s objection as to overbroad. RPD 58 requests documents evidencing the total number 2019 Volkswagen Jetta vehicles sold in California through the present date. Movant did not establish good cause as to this request and the Court is uncertain as to why the total number of 2019 Volkswagen Jettas sold, even those not suffering from any of the defects that Plaintiff’s vehicle is suffering from, is relevant to the instant action.

Further, as to 45-57, the Court also sustains Defendant’s objections as to overbroad because the requests are not limited to vehicles of the same make, model, and year of the subject vehicle.

Plaintiff’s motion to compel further response to RPDs, Set Two, numbers 38-40, and 43-58 is DENIED.

As to RPDs 41 and 42, Defendant’s objections are overruled. Plaintiff’s motion to compel further responses to RPDs 41-42 is GRANTED. Defendant is ordered to provide code compliant further responses without objection within 10 days of the instant hearing.

Sanctions

Except as provided in subdivision (j), the court shall impose a monetary sanction under Chapter 7 (commencing with § 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP § 2031.310(h).)

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, rule 3.1348(a).)

Plaintiff also moves the Court for an order that VW and/or its counsel pay to the moving party the sum of $3,210.00 as the reasonable costs and attorney fees incurred by Plaintiff for these proceedings.

Plaintiff’s counsel bases the fee request on the following: (1) An hourly rate of $450; (2) Three hours drafting the moving papers, including the motion, declaration, compiling exhibits, and the proposed order; and (3) Four hours to review Defendant’s opposition and any responses to the RFPs, draft the reply, prepare for oral argument, and remotely attend the hearing.

Defendant argues that it acted with substantial justification because it properly objected to the requests.

The Court will hear argument as to sanctions.