Judge Carolyn M. Caietti, Case 37-2021-00036852-CU-BC-CTL 2023-12-01 Tentative Ruling

Judge: Carolyn M. Caietti, Case: 37-2021-00036852-CU-BC-CTL, Date: 2023-12-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 30, 2023

12/01/2023 10:30:00 AM C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2021-00036852-CU-BC-CTL DESORBO VS KIA AMERICA INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiffs Kelly Desorbo and Jeffrey Desorbo's Motion for Order Compelling Defendant Kia Motors America, Inc.'s Compliance with Court Order dated February 10, 2023, is GRANTED.

Background On February 10, 2023, the Court granted Plaintiffs' Motion to Compel Further Responses to Request for Production of Documents and awarded monetary sanctions of $2,420. The Court ordered Defendant 'to serve a further, verified, code-compliant (see, C.C.P., §§ 2031.210, et seq.) response which includes document production to Nos. 30-33 and 40-58 by April 10, 2023. Defendant may assert objections to the attorney-client privilege and work-product doctrine, but the responses must be code-compliant and include any applicable privilege logs with sufficient factual information for Plaintiffs to assess the privilege(s). (See, e.g., C.C.P., § 2031.240.).' (ROA 114 (emphasis added).) On April 18, 2023, the Court held Defendant's Ex Parte for Additional Time to Comply with Feb. 10, 2023, Order. The parties did not appear and the Court took the matter off calendar. (ROA 137.) Defendant later called to inquire the outcome and stated he had MS Teams connection issues. (Ibid.) On April 25, 2023, the Court held a second ex parte for additional time to comply. 'The Court admonishes counsel for Defendant as the time to comply with the Court order has already passed.' The Court ordered Defendant to provide complete verified responses by May 16, 2023. (ROA 143.) Discussion Plaintiffs seek an order compelling compliance with the Court's order dated February 10, 2023, concerning Request for Production of Documents, Nos. 30-33 and 40-58. Such an order is warranted.

If a party fails to obey an order compelling a further response, 'the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of, or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).' (C.C.P., § 2031.310(i).) Here, Defendant acknowledges it did not serve a complete further response by April 10 as required by the Court's order dated February 10, 2023. This is further reflected by Defendant having to request additional time to comply. Then Defendant did not serve 'complete verified responses by May 16, 2023' Calendar No.: Event ID: TENTATIVE RULINGS

3016513 47 CASE NUMBER: CASE TITLE: DESORBO VS KIA AMERICA INC [IMAGED] 37-2021-00036852-CU-BC-CTL as required by the Court's order dated April 25, 2023. As Defendant acknowledges, it did not serve a supplemental (unverified) response until May 17 and the verifications were not served until May 26.

Defendant is not entitled to unilaterally establish its own timeline to comply with Court orders.

The Discovery Act is very clear as to what is required in a document response. The February 10 order was also very specific and clear that Defendant's responses had to be 'code-compliant (see, C.C.P., §§ 2031.210, et seq.).' Despite these statutory requirements and Court's directives, Defendant did not comply. (See, ROA 160 – Declaration of Jeffrey Mukai, at Ex. D.) A responding party must state whether it will comply with a demand, represent it lacks the ability to comply or object. (C.C.P., § 2031.210(a)(1)-(3).) A statement the party will comply must state whether production will be allowed 'either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.' (C.C.P., § 2031.220.) Here, none of Defendant's supplemental responses include whether production is made in whole or in part and whether all documents will be included in the production.

For representations of inability to comply, the responding party must 'affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand.' (C.C.P., § 20031.230.) Here, none of Defendant's supplemental responses indicating a lack of ability to comply includes this language. Further, the statement must 'specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.' (Ibid.) The statement must also include the 'name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.' (Ibid.) This information was not provided either.

For responses that include objections, the responding party must: (i) identify with particularity any document to which an objection is made; and (ii) set forth clearly the extent of, and the specific ground for objection and provide a privilege log if necessary. (C.C.P., § 2031.240(b)(1)-(2).) The Court also ordered Defendant to produce a privilege log with sufficient factual information for Plaintiffs to assess the privilege(s). Defendant's supplemental responses that include objections fail to identify with 'particularity' the documents to which the objections are made, set forth the extent of the objections and provide a privilege log.

Taken as a whole, Defendant's supplemental responses minimally preclude Plaintiffs from confirming whether Defendant made a complete production, whether responsive documents exist that can be obtained through other discovery vehicles and the merits of any objections. Plaintiffs are entitled to this discovery. Thus, Defendant failed to comply with the February 10 order. Plaintiffs do not seek any nonmonetary sanctions at this time. The Court will order further compliance as requested.

Plaintiffs also request monetary sanctions. The monetary sanctions are authorized. (C.C.P., § 2031.310(i).) The amount requested of $2,782 is substantiated and reasonable.

For these reasons, the motion is GRANTED.

Concluding Orders Defendant Kia America, Inc. is ordered to serve a complete, further, verified, code-compliant (see, C.C.P., §§ 2031.210, et seq.) response without objections and which includes document production to Nos. 30-33 and 40-58 by December 22, 2023.

Defendant Kia America, Inc. is ordered to pay Plaintiffs monetary sanctions in the amount of $2,782 by December 22, 2023.

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3016513 47 CASE NUMBER: CASE TITLE: DESORBO VS KIA AMERICA INC [IMAGED] 37-2021-00036852-CU-BC-CTL If the Court's tentative ruling is confirmed without modification, the minute order will be the Court's final order. Plaintiff is ordered to serve written notice of the Court's final ruling on all appearing parties by December 5, 2023.

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3016513 47