Judge: Ashfaq G. Chowdhury, Case: 22GDCV00788, Date: 2024-02-16 Tentative Ruling
Case Number: 22GDCV00788 Hearing Date: February 16, 2024 Dept: E
Hearing Date: 2/16/2024 – 8:30am
Case No: 22GDCV00788
Trial Date: 3/18/2024
Case Name: MARK GARCIA, et al. v. KIA AMERICA, INC.
TENTATIVE
RULING ON MOTION TO COMPEL INSPECTION OF PLAINTIFFS’ VEHICLE
RELIEF REQUESTED
Defendant KIA AMERICA, INC. (“Defendant”)
moves for an order compelling Plaintiffs MARK GARCIA and CHRISTOPHER A. ALVAREZ
(“Plaintiffs”) to produce the subject vehicle for inspection within 30 days of
the Court’s order.
This motion is made pursuant to Code
of Civil Procedure § 2031.320 on the grounds that Plaintiffs have failed to
produce the vehicle for the properly noticed vehicle inspection. In addition,
Defendant contends that Plaintiffs have failed to meet and confer on this issue
in good faith.
Procedural
Moving Party: Defendant Kia America,
Inc.
Responding Party: Unopposed
Proof of Service Timely Filed (CRC
Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address (CCP §1013, §1013a, §1013b): Ok
Moving Papers: Notice/Motion
Opposition Papers: Unopposed
BACKGROUND
This action arises from an allegedly defective 2018
Kia Soul (the “Subject Vehicle”). On October 28, 2022, Plaintiffs Mark Garcia
and Christopher A. Alvarez (“Plaintiffs”) filed a Complaint against Defendant
Kia America, Inc. (“Defendant”) and DOES 1 through 10, inclusive, alleging
causes of action for (1) Violation of the Song-Beverly Act—Breach of Express
Warranty, (2) Violation of the Song-Beverly Act—Breach of Implied Warranty, and
(3) Violation of the Song-Beverly Act Section 1793.2(b).
On November 30, 2023, Defendant filed an Answer to the
Complaint.
On January 4, 2024, Defendant filed and served the
instant unopposed motion to compel Plaintiffs to produce the Subject Vehicle
for inspection within 30 days of the order granting the motion.
On January 8, 2024, Defendant filed a motion to
continue trial and all related cutoff dates, which is set for hearing on
February 23, 2024.
RECOMMENDED RULING
The Court tentatively GRANTS Defendant’s motion to
compel inspection of the Subject Vehicle and orders Plaintiffs to produce the
Subject Vehicle for Inspection within 30 days of the date of this order.
ANALYSIS
Legal Standard
“Any party may obtain discovery . .
. by inspecting, copying, testing, or sampling documents, tangible things, land
or other property, and electronically stored information in the possession,
custody, or control of any other party to the action.” (Code Civ. Proc., §
2031.010, subd. (a).) “Within 30 days
after service of a demand for inspection, copying, testing, or sampling, the
party to whom the demand is directed shall serve the original of the response
to it on the party making the demand, and a copy of the response on all other
parties who have appeared in the action, unless on motion of the party making
the demand, the court has shortened the time for response.” (Code Civ. Proc., §
2031.260, subd. (a).)
Where a party fails to timely
respond to demand for inspection, copying, testing or sampling “[t]he party to
whom the demand for inspection, copying, testing, or sampling is directed
waives any objection to the demand, including one based on privilege or on the
protection for work product.” (Code Civ. Proc., § 2031.300, subd. (a).) Code
Civ. Proc. § 2031.300(b) provides that “[t]he party making the demand may move
for an order compelling response to the demand.” Where a party fails to permit
a vehicle inspection, the party seeking the vehicle inspection may move for an
order compelling compliance. (Code Civ. Proc., § 2031.320, subd. (a).)
Discussion
Counsel
for Defendant, Sara Rabiee (“Rabiee”), declares that on April 6, 2023, her
office served Plaintiffs’ counsel with a demand for inspection of Plaintiffs’
vehicle, which is a 2020 Kia Soul (the “Subject Vehicle”). (Rabiee Decl., ¶ 3;
Exhibit A.) The inspection date was July 6, 2023. (Id.) Plaintiffs’
counsel objected to Defendant’s demand for inspection on July 5, 2023, and also
served an amended objection on the same date. (Id., ¶ 4; Exhibit B.)
Defendant’s counsel met and conferred with Plaintiffs’ counsel regarding a new
date on which to reschedule the vehicle inspection; however, Plaintiffs’
counsel has failed to provide dates for the inspection in spite of assurances
that dates would be provided. (Id., ¶¶ 5-8; Exhibits C and D.) Counsel
declares that the inspection of the Subject Vehicle in a lemon law action is
one of the most important forms of discovery and is essential to Defendant’s
ability to evaluate this matter and defend the case in a meaningful way. (Id.,
¶ 9.)
The Demand for Vehicle Inspection
requests that Plaintiffs produce a “2020 Kia Soul, VIN KNDJ53AF3L7056004.” (Rabiee
Decl., ¶ 3; Exhibit A at 1:22-23.) The Demand for Vehicle Inspection states
that Defendant’s “expert witness will conduct a vehicle inspection. The
inspection may consist of retrieving vehicle data using the OBD 2 port,
starting and operating the engine, opening the engine compartment, taking
further photographs, and conducting a test drive.” (Id., ¶ 3; Exhibit A
at 2:17-20.)
Here, Plaintiffs allege that the
Subject Vehicle was delivered to Plaintiff with serious defects and
nonconformities to warranty including, but not limited to, engine, electrical,
and transmission system defects. (Complaint, ¶ 10.) Based on the declaration of
Defendant’s counsel, Plaintiffs have failed to produce the Subject Vehicle for
inspection. The Court finds that such an inspection is relevant for Defendant
to be able to defend itself against Plaintiffs’ claims in the instant action. Also,
the motion is unopposed which “creates an inference that the motion is
meritorious.” (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403,
1410.)
Accordingly, the Court GRANTS Defendant’s
Motion to Compel Inspection of the Subject Vehicle. Plaintiffs are ordered to
produce the Subject Vehicle for inspection within 30 days of the date of this
order.