Judge: Curtis A. Kin, Case: 21STCV30094, Date: 2022-12-20 Tentative Ruling
Case Number: 21STCV30094 Hearing Date: December 20, 2022 Dept: 72
MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR
PRODUCTION OF DOCUMENTS
Date: 12/20/22
(8:30 AM)
Case: Victoria Kirksey Tarver v. Nissan North America, Inc. (21STCV30094)
TENTATIVE RULING:
Plaintiff Victoria Kirksey Tarver moves to compel further
responses from defendant Nissan North America, Inc. to Requests for Production
of Documents, Set One, Nos. 1, 8, 16, 20, 21, 23-26, 29, 30, 32-35, 44, 67-75, 86,
and 90.
Defendant Nissan North America, Inc. served and filed its
opposition on December 14, 2022. The deadline to serve and file the opposition
was December 7, 2022, nine court days before the hearing. (CCP § 1005(b)
[opposition due nine court days before hearing].) The opposition was served and
filed only five court days before the hearing. Plaintiff has not filed a reply.
Under these circumstances, the Court exercises its discretion and declines to
consider the opposition. (Rule of Court 3.1300(d) [“No paper may be
rejected for filing on the ground that it was untimely submitted for filing. If
the court, in its discretion, refuses to consider a late filed paper, the
minutes or order must so indicate”].)
The Court finds that plaintiff demonstrates good cause for the
discovery sought. Based on plaintiff’s allegations regarding transmission and
electrical defects in the subject vehicle (Compl. ¶ 9), plaintiff is entitled
to discovery which is probative of defendant’s knowledge of these defects in
2019 Nissan Sentra vehicles, including in vehicles other than the subject
vehicle, and defendant’s handling of complaints. (Donlen v. Ford Motor
Company (2013) 217 Cal.App.4th 138, 143-44; Doppes v. Bentley
Motors, Inc. (2009) 174 Cal.App.4th 967, 973-74, 994.)
Any willfulness in violating the Song-Beverly Consumer
Warranty Act would entitle plaintiff to a civil penalty not exceeding two times
the amount of actual damages. (Compl. ¶ 13, 20, 23, 27 [allegation that
defendant’s failure to comply with Song-Beverly was willful]; Civ. Code §
1794(c); CACI 3244.) A defendant is willful under Civil Code § 1794(c) when the
defendant “knew of its legal obligations and intentionally declined to follow
them.” (CACI 3244.) Defendant’s knowledge gained from other instances of the
defects about which plaintiffs complain may evidence defendant’s knowledge that
the powertrain control module and transmission were not repairable and
therefore defendant had an obligation to replace or repurchase the vehicle
under Civil Code § 1793.2(d)(2).
Because defendant fails to justify its objections, further
responses to Request Nos. 16, 20, 21, 23-26, 29, 30, 32-35, 67-75, 86, and 90
are required. With respect to Request Nos. 86 and 90, defendant’s purported
inability to comply based on lack of specificity as to the phrasing of the
document requests constitutes objections that defendant fails to justify.
Defendant’s responses to Request Nos. 1 and 44 are not fully
compliant with CCP § 2031.220. Although defendant states it will comply in
whole, defendant does not state that it will produce all responsive documents
in its possession, custody, or control. Further responses to Request Nos. 1 and
44 are required.
Defendant’s response to Request Nos. 8 is fully compliant
with CCP § 2031.220. Defendant states it will comply in whole and will produce
all responsive documents in its possession, custody, or control. No further
response to Request No. 8 is required.
The motion is GRANTED IN PART. The motion is DENIED as to
Request for Production, Set One, No. 8. With respect to Requests for
Production, Set One, Nos. 1, 16, 20, 21, 23-26, 29, 30, 32-35, 44,
67-75, 86, and 90, no later than fifteen (15) days hereof, defendant
Nissan North America, Inc. is ordered to provide Code-compliant, verified
further responses and produce responsive documents.