Judge Ashfaq G. Chowdhury, Case Number: 23GDCV01741, Date: 2024-06-07 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV01741, Date: 2024-06-07 Tentative Ruling

Case Number: 23GDCV01741 Hearing Date: June 7, 2024 Dept: E

Hearing Date: 06/07/2024 – 8:30am Case No: 23GDCV01741 Trial Date: 03/10/2025 Case Name: CARLOS A. NOLASCO, an individual, and XIOMARA NOLASCO, an individual v. KIA AMERICA, INC., a California Corporation, and AMP HOLDING, INC., a California Corporation d/b/a CAR PROS KIA HUNTINGTON BEACH, and DOES 1-10 inclusive

TENTATIVE RULING ON MOTION TO COMPEL FURTHER RESPONSES

BACKGROUND On 08/17/2023, Plaintiffs, Carlos A. Nolasco and Xiomara Nolasco, filed a Complaint.

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, KIA America, Inc.

The fourth cause of action for negligent repair is alleged against Car Pros Kia Huntington Beach.

Plaintiffs allege that on July 24, 2018, they purchased a 2018 Kia Optima. (Compl. ¶ 9.) Plaintiffs allege that the Subject Vehicle was delivered to them with serious defects and nonconformities to warranty and developed other serious defects and nonconformities to warranty including, but not limited to, engine, electrical, emission, and transmission system defects (Compl. ¶ 11.)

RELIEF REQUESTED “Plaintiffs CARLOS A. NOLASCO and XIOMARA NOLASCO (“Plaintiffs”) will, and hereby do, move for an order to strike Defendant KIA AMERICA, INC.’s (“Defendant”) objections and compel further responses to Plaintiffs’ Request for Production of Documents, Set One, Request Nos. 1 through 31 (collectively, the “RFPs”).

Plaintiffs bring this Motion pursuant to California Code of Civil Procedure §§ 2031.310, and 2031.320, on the grounds that Defendant’s objections are not Code-compliant, and that Defendant failed to provide adequate responses to Plaintiffs’ RFPs, which seek documents relevant to the asserted Song-Beverly Consumer Warranty Act (“SBA”) causes of action.”

(Mot. p. 2.)

“Accordingly, Plaintiffs seek an order striking Defendant’s meritless objections and compelling Defendant to provide further responses and all responsive documents within ten calendar days from entry of the Court’s Order as to Plaintiffs´ Request for Production of Documents, Set One, Request Nos. 1 through 31.

The Motion is based upon this Notice, the following Memorandum of Points and Authorities, the Declaration of Gregory Sogoyan, Esq., the pleadings, and papers on file, and upon any other matters that may be presented to the Court at the hearing.”

(Mot. p. 3.)

Procedural

Moving Party: Plaintiffs, Carlos A. Nolasco and Xiomara Nolasco Responding Party: Defendant, Kia America, Inc.

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; Sogoyan Declaration; Separate Statement; Proposed Order

Opposition Papers: Opposition; Separate Statement; Proudfoot Declaration

Reply Papers: Reply

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).)

Neither party addresses the 45-day requirement.

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

Here, moving Plaintiffs met and conferred. (See Sogoyan Decl. ¶¶ 17-24.)

TENTATIVE RULING Preliminary matter It appears that Plaintiffs are arguing that objections in the initial responses are waived because the responses were untimely.

Here, the Court does not find Plaintiffs’ argument availing.

The instant discovery was propounded on October 10, 2023 via electronic mail. Therefore responses must have been served within 30 days after service. (See CCP § 2031.260(a).) “The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded.” (CCP § 12.) Therefore, here it appears the 30th day would be Thursday, November 9th 2023. However, two court days had to be added based on CCP § 1010.6 (a)(3)(B). Since Friday, November 10th was a court holiday, the responses would have been due by November 14th 2023.

Here, Defendant provided responses on November 14th 2023.

Although Plaintiffs argue that the November 14th responses were unverified, case law indicates that if responses were timely provided, but the verifications were not timely, the objections are not waived.

Even though Plaintiffs argue that verifications have still not been provided, this does not appear to waive the objections based on case law.

As states in Food 4 Less Supermarkets, Inc. v. Superior Court:

What then is the appropriate procedure if a party tenders a hybrid response containing objections and fact-specific responses? Given our analysis, there is no need to verify that portion of the response containing the objections. Thus, if the response is served within the statutory time period, that portion of the response must be considered timely notwithstanding the lack of verification.5 The omission of the verification in the portion of the response containing fact-specific responses merely renders that portion of the response untimely and therefore only creates a right to move for orders and sanctions under subdivision (k) of section 2031 as to those responses but does not result in a waiver of the objections made.

(Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 657-658.)

Defendant argues that verifications were provided on November 15, 2023, but this makes no difference. First, the verifications would still be untimely. Second, Defendant provided no proofs of service indicating that verifications were served.

TENTATIVE RULING As to RFPs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14, Plaintiffs’ motion to compel further responses is GRANTED. Defendant’s objections did not comply with 2031.240(b)-(c). Defendant’s objections are boilerplate. Defendant’s objections are overruled. Defendant is to provide code-compliant, verified responses, without objection, within ten calendar days from entry of the Court’s Order.

As to RFPs 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, and 31, the Court fails to see how Plaintiffs demonstrated good cause. Under CCP § 2031.310 (b)(1), “The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.”

Many of these requests pertain to documents dating back to 2017 and going until the present, and many of the requests are not limited to the make, model, and year of the subject vehicle. The subject vehicle is a 2018 Kia Optima. Plaintiffs don’t attempt to explain good cause in any understandable fashion.

As to RFPs 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, and 31, Plaintiffs’ motion to compel further responses is DENIED.

The Court will hear argument as to RFP 30.

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).)

No sanctions were requested by either party.