Judge Ashfaq G. Chowdhury, Case Number: 24NNCV03232, Date: 2025-01-23 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 24NNCV03232, Date: 2025-01-23 Tentative Ruling

Case Number: 24NNCV03232 Hearing Date: January 23, 2025 Dept: E

Hearing Date: 1/23/2025 – 8:30am
Case No. 24NNCV03232
Trial Date: UNSET
Case Name: JEEYOUNG KIM, an individual; v. VOLKSWAGEN GROUP OF AMERICA, INC., a New Jersey Corporation; NEW CENTURY AUTOS INC., a California Corporation d/b/a NEW CENTURY VOLKSWAGEN; and DOES 1-20, inclusive

4 TENTATIVE RULINGS – COMPEL RESPONSES

BACKGROUND
Plaintiff, Jeeyoung Kim, filed the instant action on 7/31/2024 against Defendants – (1) Volkswagen Group of America, Inc., a New Jersey Corporation, and (2) New Century Autos Inc., a California Corporation d/b/a New Century Volkswagen.

Plaintiff alleges two causes of action against both Defendants for (1) Breach of Implied Warranty of Merchantability under the Song-Beverly Warranty Act and (2) Breach of Express Warranty under the Song-Beverly Warranty Act.

Motion 1 Relief Requested

“Plaintiff JEEYOUNG KIM (hereafter “Plaintiff”), will move the Court for an Order compelling Defendant, VOLKSWAGEN GROUP OF AMERICA, INC., to serve responses, without objections, to Plaintiff’s Form Interrogatories, Set One, served on Defendant on September 3, 2024. This motion is made pursuant to C.C.P. § 2031.300 on the grounds that the responding party has failed, without justification, to respond to this proper discovery, and has waived its right to object to these interrogatories.

Notice is additionally given that Plaintiff will request that the Court award monetary sanctions against VOLKSWAGEN GROUP OF AMERICA, INC., and in favor of Plaintiff in the sum of $800 pursuant to C.C.P. § 2031.300.”

(Pl. Not. p. 2.)

Motion 2 Relief Requested
“Plaintiff JEEYOUNG KIM (hereafter “Plaintiff”), will move the Court for an Order to Compel Defendant VOLKSWAGEN GROUP OF AMERICA, INC. to serve responses, without objections, to Plaintiff’s Special Interrogatories, Set One, which were served on Defendant on September 3, 2024. This motion is made pursuant to C.C.P. § 2031.300 on the grounds that the responding party has failed, without justification, to respond to this proper discovery, and has waived its right to object to these interrogatories.

(Pl. Not. p. 2.)

Motion 3 Relief Requested
“Plaintiff JEEYOUNG KIM (hereafter “Plaintiff”), will move the Court for an Order to Compel Defendant VOLKSWAGEN GROUP OF AMERICA, INC. to Serve Responses and Produce All Documents Demanded in Plaintiff’s Requests for Production of Documents And Things, Set One, which were served on Defendant on September 3, 2024. This motion is made pursuant to C.C.P. § 2031.300 on the grounds that the responding party has failed, without justification, to respond to this proper discovery, and has waived its right to object to these inspection demands.

(Pl. Not. p. 2.)

Motion 4 Relief Requested
“Plaintiff JEEYOUNG KIM (hereafter “Plaintiff”), will move the Court for an Order to Deem the Truth of Matters in Plaintiff’s Requests For Admissions, Set One Admitted And Conclusively Established. This motion is made pursuant to C.C.P. § 2031.300 on the grounds that the responding party has failed, without justification, to respond to this proper discovery, and has waived its right to object to these requests.

(Pl. Not. p. 2.)

Procedural

Moving Party: Plaintiff, Jeeyoung Kim

Responding Party: No Opposition by Defendant Volkswagen Group of America, Inc.

Moving Papers for all 4 motions: Notice/Motion; Justin P. Wisniewski Declaration; Proposed Order; Proof of Service

Opposition Papers: No Opposition by Defendant Volkswagen Group of America, Inc.

Reply papers for all 4 motions: Reply to Non-Opposition; Proof of Service

16/21 Day Lapse (CCP § 12c and § 1005(b):Ok
Proof of Service Timely Filed (CRC, Rule 3.1300): Ok

Correct Address (CCP § 1013, § 1013a): Uncertain – Plaintiff’s motions are filed against Defendant, Volkswagen Group of America, Inc. The Court would like Plaintiff to address the Court’s concerns mentioned below.

The instant four motions were served to Defendant’s counsel via electronic mail. Problematic with this is that for the instant Defendant, Volkswagen Group of America, Inc., no counsel is listed on eCourt to check if Plaintiff’s counsel served the proper email address for Volkswagen Group of America, Inc.

Further, the Court notes that eCourt does not indicate that Volkswagen Group of America, Inc. answered in this action. This is confusing because two Answers were submitted on 9/3/2024, and one of the Answers appears to be by Volkswagen Group of America, Inc. Despite one of the 9/3/2024 Answers appearing to have been submitted by Volkswagen Group of America, Inc., eCourt lists that both Answers were submitted by Defendant, New Century Autos Inc.

Therefore, the Court should discuss with the parties at the hearing whether or not eCourt’s failure to indicate that Volkswagen Group of America, Inc. submitted an Answer is due to an error on the Court’s behalf.

Further, the parties should address why eCourt indicates that Volkswagen Group of America, Inc. does not have counsel listed.

The Court notes that if the Volkswagen Group of America, Inc. Answer filed on 9/3/2024 is in fact an answer for Volkswagen Group of America, Inc., the attorney listed on Volkswagen Group of America, Inc.’s Answer is the same as the attorney listed for the other Defendant, New Century Autos Inc.

Further, if the Volkswagen Group of America, Inc. Answer filed on 9/3/2024 is in fact an answer for Volkswagen Group of America, Inc., the attorneys’ emails listed on that Answer are: (1) sean.conboy@squirepb.com and (2) samantha.koopersmith@squirepb.com.

Therefore, assuming Volkswagen Group of America, Inc. has the same attorney as Defendant New Century Autos Inc, then Plaintiff served the proper email address.

LEGAL STANDARD – COMPEL RESPONSES, INTERROGATORIES
Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party, unless on motion of the propounding party the court has shortened the time for response, or unless on motion of the responding party the court has extended the time for response. (CCP § 2030.260(a).)

If a party to whom interrogatories are directed fails to serve a timely response, the party propounding the interrogatories may move for an order compelling response to the interrogatories. (CCP § 2030.290(b).)

Further, if a party to whom interrogatories are directed fails to serve a timely response, “The party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2030.210, 2030.220, 2030.230, and 2030.240. (2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (CCP § 2030.290(a).)

Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day time limit, and the propounding party does not have to demonstrate either good cause or that it satisfied a “meet and confer” requirement. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4^th 390, 404 citing Weil and Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) ¶¶ 8:1137 to 8:1144, pp. 8F-59 to 8F-60, ¶¶ 8:1483 to 8:1489, pp. 8H-29 to hH-30 (Weil & Brown).)

LEGAL STANDARD – COMPEL RESPONSES, INSPECTION DEMANDS
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, or unless on motion of the party to whom the demand has been directed, the court has extended the time for response. (CCP § 2031.260(a).)

If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the party making the demand may move for an order compelling response to the demand. (CCP § 2031.300(b).)

If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the 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 under Chapter 4 (commencing with Section 2018.010). (CCP § 2031.300(a).) “The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280. (2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (CCP § 2031.300(a)(1)-(2).)

LEGAL STANDARD –REQUEST TO DEEM ADMISSIONS ADMITTED
“Within 30 days after service of requests for admission, the party to whom the requests are directed shall serve the original of the response to them on the requesting party, and a copy of the response on all other parties who have appeared, unless on motion of the requesting party the court has shortened the time for response, or unless on motion of the responding party the court has extended the time for response.” (CCP § 2033.250(a).)

If a party to whom requests for admission are directed fails to serve a timely response, the requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010). (CCP § 2033.280(b).)

Further, “If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply: (a) The party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2033.210, 2033.220, and 2033.230. (2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (CCP § 2033.280(a).)

“The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (CCP § 2033.280(c).)

TENTATIVE RULING ALL MOTIONS
Plaintiff seeks to: (1) compel responses, without objections, to Form Interrogatories, Set One; (2) compel responses, without objections, to Special Interrogatories, Set One; (3) compel responses and produce all documents demanded in Requests for Production of Documents and Things, Set One; and (4) deem the truth of matters in Requests for Admissions, Set One, admitted and conclusively established.

Plaintiff served the instant four discovery requests on September 3, 2024. Not only did Defendant not serve responses within 30 days, but Defendant did not serve responses by the 30-day extension that Plaintiff granted Defendant. Since, Defendant still had not served responses by the date these motions were filed [12/27/2024], Plaintiff argues that the relief requested in the instant four motions should be granted.

Here, the Court will hear argument.

Typically, this Court would grant all four of these motions based on what the moving papers stated because Defendant did not provide timely responses.

However, the Replies for each motion stated that on January 14, 2025, Defendant served unverified responses to the instant discovery requests. In Reply, Plaintiff concedes that many, but not all, of Defendant’s responses for the form and special interrogatories and RFAs are largely responsive and satisfactory. Plaintiff’s Reply also states that the parties must still meet and confer on the responses.

The Reply for the RFP motion stated in relevant part:

Defendant’s document production so far does not include Defendant’s Lemon Law policies and procedures, the excerpts of the Workshop Manual that pertain to the repairs performed on the Subject Vehicle, or Customer Complaints that are substantially similar to the defects Plaintiff is alleging in vehicles of the same year, make, and model as the Subject Vehicle. As stated previously, Plaintiff has conferred with Defendant regarding further production, and Plaintiff hopes for & expects cooperation in that regard.

However, Plaintiff still contends that these responses remain insufficient, demonstrating that Plaintiff’s Motion was and is meritorious. As such, Plaintiff requests that this Court grant the Motion in its entirety.

(Pl. RFP Reply, p. 3.)

Since Plaintiff appears to concede that initial responses have been provided for all discovery requests at issue, the Court will hear argument as to if it would not make more sense to deny these motions moot as to compelling responses, but not deny the motion moot as to sanctions.

The Court will hear argument on this issue because although Plaintiff concedes that responses were provided, and that not all are satisfactory, Plaintiff stated it still must meet and confer about the responses. Therefore, would it not make more sense for Plaintiff to file motions to compel further if after conferring, the parties are at an impasse about the initial responses?

The Court notes that no Opposition was provided.

The Court would like the parties to address the service issue that the Court previously pointed out.

The Court also notes that the Replies argue that these motions should be granted because no Opposition was filed, and under CRC, Rule 8.54(c), ““A failure to oppose a motion may be deemed a consent to the granting of the motion.”

However, the Court notes that CRC, Rule 8.54(c) pertains to “Division 1. Rules Relating to the Supreme Court and Courts of Appeal.” Here, this Court is not the Supreme Court or a Court of Appeal.

Confusingly in the Replies, Plaintiff states that defense counsel informed Plaintiff’s counsel that defense counsel failed to provide full, compliant responses because she had been evacuated from her home due to wildfires in the area. Despite Plaintiff’s counsel being sympathetic to this circumstance, Plaintiff’s counsel simultaneously argues that this circumstance is besides the point because it took Defendant four months to respond in the first place. The Court is not sure what Plaintiff wants the Court to take away from Plaintiff’s argument on this point.

The Court will hear argument.

Sanctions – Requests for Admission

“It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (CCP § 2033.280(c).)

Sanctions - Inspection Demands

In relevant part, 2031.300(c) states as follows:

Except as provided in subdivision (d), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, 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 § 2031.300(c).)

Sanctions – Interrogatories
CCP § 2030.290 states in relevant part:

The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, 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 § 2030.290(c).)

Sanctions Ruling
“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).)

For each motion, Plaintiff seeks $800 in sanctions.

Plaintiff’s counsel arrived at $800 for each motion based on 1 hour to draft and prepare the motion, and 1 hour to review opposition, draft a reply, and appear at the hearing on this motion. Plaintiff’s counsel states that his hourly rate is $400 per hour; therefore, for 2 hours of work related to each motion, Plaintiff’s counsel requests $800 in sanctions for each motion.

The Court will hear argument as to sanctions. The Court notes that no opposition was submitted. The Court also notes that whether or not the motions are granted as to compelling responses or deeming admitted, at least some sanctions appear appropriate because Defendant did not serve responses until after the filing of the motions.