Judge David A. Rosen, Case 20STCV18473 2023-03-02 Tentative Ruling

Judge: David A. Rosen, Case: 20STCV18473, Date: 2023-03-02 Tentative Ruling

Case Number: 20STCV18473 Hearing Date: March 2, 2023 Dept: E

Hearing Date: 03/03/2023 – 2:00pm

Case No: 20STCV18473
Trial Date: 04/03/2023

Case Name: JUSTINE HSU v. TESLA, Inc.

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

Moving Party: Defendant, Tesla, Inc. fka Tesla Motors, Inc. (Defendant or Tesla)

Responding Party: Plaintiff, Justine Hsu

Proof of service timely filed (CRC 3.1300(c)): Ok

Correct Address (CCP §§ 1013, 1013(a)): Ok

Oppo and Reply submitted.

Moving Papers: Notice of Motion/Motion; Separate Statement; Carey Declaration; Proposed Order

Opposition Papers: Opposition; Separate Statement; Slavik Declaration; Notice of Errata

Reply Papers: Reply; Separate Statement; Tesla’s Objections to Slavik Declaration

75/80 Days

Under 437c(2), notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. If the notice is served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days. (CCP §437c(a)(2).)

Here, the instant motion is timely.

30 Days
The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading. (CCP §437c(a)(3).)

The instant motion will be heard 31 days before the date of trial and is thus timely.

RELIEF REQUESTED

Defendant, Tesla, moves this Court for summary judgment in its favor on all causes of action asserted against it in Plaintiff’s Complaint, or in the alternative, summary adjudication.

This motion is made pursuant to CCP §437c.

BACKGROUND
This action arises out of a car accident that Plaintiff was in that occurred on July 6, 2019.

A Complaint was filed on 05/14/2020.

A First Amended Complaint was filed on 05/29/2020.

A Second Amended Complaint (SAC) was filed on 01/21/2021.

In Defendant’s moving papers, Defendant is moving for msj/msa on the Complaint. Presumably, Defendant meant the SAC. Therefore, the Court will presume the SAC is the operative complaint.

The SAC alleges eight causes of action: (1) Strict Product Liability, (2) Negligence, (3) Negligence – Breach of Duty to Warn; (4) Breach of Contract/Common Law Warranty; (5) Breach of Implied Warranty of Merchantability, Cal. Com. Code §2314, (6) Breach of Express Warranty, Cal. Com. Code §2313, (7) Intentional Misrepresentation, and (8) Common Law Fraudulent Concealment.

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

Code of Civil Procedure section 437c, subdivision (a) provides that “a party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” The motion shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c(c).) In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact. (Id.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

“A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (CCP §437c(p)(2).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (CCP §437c(f)(2).)

ANALYSIS
“If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Cal. Rules Court, Rule 3.1350(b).)

Additionally, “The Separate Statement of Undisputed Material Facts in support of a motion must separately identify: (A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and (B) Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.” (Cal. Rules of Court, Rule 3.1350(d)(1).)

Further, as explained in Schmidlin v. City of Palo Alto:

A *744 motion for summary adjudication tenders only those issues or causes of action specified in the notice of motion, and may only be granted as to the matters thus specified. The movant must “state[ ] specifically in the notice of motion and ... repeat[ ], verbatim, in the separate statement of undisputed material facts,” “the specific cause of action, affirmative defense, claims for damages, or issues of duty” as to which summary adjudication is sought. (Former Cal. Rules of Court, rule 342(b); see now Cal. Rules of Court, rule 3.1350(b).) The motion must be denied if the movant fails to establish an entitlement to summary adjudication of the matters thus specified; the court cannot summarily adjudicate other issues or claims, even if a basis to do so appears from the papers. (See Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1546, 235 Cal.Rptr. 106 [“ ‘If a party desires adjudication of particular issues or subissues, that party must make its intentions clear in the motion....’ [Citation.] There is a sound reason for this rule: ‘... the opposing party may have decided to raise only one triable issue of fact in order to defeat the motion, without intending to concede the other issues. It would be unfair to grant a summary adjudication order unless the opposing party was on notice that an issue-by-issue adjudication might be ordered if summary judgment was denied’ ”].)

Here defendants' separate statement reflects no attempt to comply with this requirement. That alone precludes a holding that the trial court erred in denying the motion.

(Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 743-744.)

Here, Defendant’s separate statement does not comply with the requirements of California Rules of Court Rule 3.1350(b) or 3.1350(d)(1).

TENTATIVE RULING
Defendant’s motion for summary judgment, or in the alternative summary adjudication, to all causes of action in the SAC is DENIED in its entirety. The SAC contained eight causes of action and the separate statement simply listed 23 claimed undisputed facts without identifying a single cause of action. Defendant did not comply with CRC 3.1350(b) or 3.1350(d)(1).

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (CCP §437c(q).) Here, the Court is not ruling on Defendant’s objections submitted in the Reply.

Hearing Date: 03/03/2023 – 10am

Case No: 20STCV18473

Trial Date: 04/03/2023

Case Name: JUSTINE HSU v. TESLA, INC.

TENTATIVE
RULING ON MOTION TO COMPEL FURTHER RESPONSES

Moving Party: Plaintiff, Justine Hsu

Responding Party: Defendant, Tesla Inc.

Opposition and Reply Submitted

Proof of Service Timely Filed (CRC
Rule 3.1300): Ok

16/21 Court Days Lapsed (CCP 1005(b)): Ok

Proper Address: Ok

Moving Papers: Motion/Notice of
Motion; Separate Statement; Decl. Anum Arshad

Opposition Papers: Opposition;
Separate Statement; Decl. Dmitriy Kopelevich

Reply Papers: Reply

RELIEF REQUESTED

Plaintiff, JUSTINE HSU (“Justine”) seeks
this Court’s Order compelling Defendant, TESLA, INC. (“Tesla”) to further
respond to Form Interrogatories – General (Set One) Nos. 15.1 and 17.1
(hereinafter, the “Interrogatories”).

Justine further requests that the
Court issue monetary sanctions against Tesla and in favor of Justine, in the
sum of $5,122.50, pursuant to Code of Civil Procedure §§2023.030 (a), (c),
2023.010 (d), (e), (f), (h) and 2030.300.

This Motion is brought pursuant to
Code of Civil Procedure §2030.300 and is brought on the grounds Tesla has
failed to comply with the Code of Civil Procedure and the Civil Discovery Act,
by:

1.
Refusing, without substantial justification, to identify each denial and each
specific/affirmative defense in its pleadings, and for each, to state all
facts, all persons, and all documents in support of the basis for its
denials/defenses in response to Form Interrogatory No. 15.1; and

2.
Refusing, without substantial justification, to provide complete and
straightforward responses to Form Interrogatory No. 17.1 in connection with
Tesla’s responses to the concurrently served Requests for Admission (Set No. One)
that were not unqualified admissions.

[The notice of motion does not indicate it, but with
respect to FROG 17.1, Plaintiff is moving to compel with respect to RFA 5, 6, and
7. However, there does not appear to be any confusion here as to this because both
parties’ Separate Statements addressed these RFAs with respect to FROG 17.1.]

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 propounding
party and the responding party have agreed in writing, the propounding party
waives any right to compel a further response to the interrogatories.” (CCP
§2030.300(c).)

Here, Defendant
provided responses on October 3, 2022; however, the verified responses were not
provided until January 10, 2023. This motion was filed and served on January
27, 2023; therefore, this motion is timely.

Meet and
Confer

“A motion under subdivision (a) shall be
accompanied by a meet and confer declaration under Section 2016.040.” (CCP
§2030.300(b)(1).)

Moving party met and
conferred. (See Arshad Decl. ¶5.) Defendant’s argument that Plaintiff did not
meet and confer is unavailing.

LEGAL
STANDARD - COMPEL FURTHER RESPONSES TO INTERROGATORIES

On receipt of a response to interrogatories,
the propounding party may move for an order compelling a further response if
the propounding party deems that any of the following apply:

(1) An answer to a particular interrogatory is
evasive or incomplete.

(2) An exercise of the option to produce documents
under Section 2030.230 is unwarranted or the required specification of those
documents is inadequate.

(3) An objection to an interrogatory is without
merit or too general.

(CCP §2030.300(a).

If a timely motion to compel has been filed,
the¿burden is on the responding party¿to justify any objection or failure fully
to answer.¿(Coy v. Superior Court (1962) 58 Cal.2d 210, 220–221
[addressing a motion to compel further responses to interrogatories]; see also¿Fairmont
Ins. Co. v. Superior Court¿(2000) 22 Cal.4th 245, 255.)

Furthermore, to the extent there is any doubt in
whether these records should be discoverable, California’s liberal approach to
discovery provides that doubt should be resolved in favor of permitting
discovery. (Pacific Tel. & Tel. Co. v. Superior Court (1970) 2
Cal.3d 161, 173.)

The party to whom interrogatories have been propounded
shall respond in writing under oath separately to each interrogatory by any of the
following:

(1) An answer
containing the information sought to be discovered.

(2) An exercise of
the party’s option to produce writings.

(3) An objection to
the particular interrogatory.

(CCP §2030.210(a).)

DISCUSSION

FROG 15.1

Identify
each denial of a material allegation and each special or affirmative defense in
your

pleadings and for each:

(a) State all facts upon
which you base the denial or special or affirmative defense;

(b) State the names,
ADDRESSES, and telephone numbers of all PERSONS who have

knowledge of those facts;
and

affirmative defense, and
state the name, ADDRESS, and telephone number of the PERSON

who has each DOCUMENT.

Response to FROG 15.1

(a)-(c)
Subject to and without waiving the objections stated below, Tesla's
investigation and discovery are continuing. In Tesla’s Answer to Plaintiff’s
Second Amended Complaint, Tesla made its general denial and alleged affirmative
defenses to controvert Plaintiff’s material allegations and to preserve these
issues for trial so that they are not waived. In addition, Tesla asserted a
number of affirmative defenses to minimize the possibility that Tesla would
have to amend its Answer as it discovered new facts. The development of
evidence and the discovery of facts supporting these defenses are the subject
on ongoing investigation and discovery. As such, it is difficult at this time
to state “all facts” upon which Tesla bases its denials and affirmative
defenses. Additional investigation and discovery are necessary before all such
facts, documents, and persons can be fully ascertained. Tesla’s investigation
and discovery are continuing.

Subject to that
clarification, affirmative defense Nos. 1, 3, 12, 13, 17, 22, 23, 27 – 31, 40 –
45, 47, 48 and 55 were pled to avoid waiver. Tesla is not aware of any facts at
this time to support these affirmative defenses. Tesla’s investigation and
discovery are continuing.

Affirmative defenses Nos.
2 (Comparative Fault), 4 (Assumption of Risk), 5 (Third Party Liability), 7
(Intervening/Superseding Actions), 10 (Misuse/Abuse/Alteration), 11 (Improper
Maintenance) and 14 (Additional Warnings) were pled based on the contributory
fault, assumption of risk, potential misuse of the 2016 Model S by Plaintiff.
Tesla reviewed the diagnostic data log from the time of the accident and
confirmed that there is no evidence of a defect in the subject vehicle. Tesla
also notes that the police report, which has been provided to Plaintiff,
concluded that she caused this collision by “turning her vehicle from a direct
course on a roadway without reasonable safety.”

Affirmative defense Nos.
6 (Fair Responsibility Act), 8 (State-of-the-Art), 9 (Compliance with Internal
/ Industry Standards), 15 (Alternate Warnings), 16 (Sufficient Warnings / No
Duty to Warn), 18 - 20, 24 - 26, 37 - 40, 46, 49 - 54 (Warranty related) and
32-36 (Punitive Damages) were pled because Tesla has no evidence to the
contrary. The 2016 Model S and its component parts complied with all applicable
industry and Federal Motor Vehicle Safety Standards. Tesla has not been
provided with any facts showing that the subject vehicle, or its component
parts, were defective when they left the manufacturer’s possession. As to the
punitive damages related defenses, Tesla did not engage in any despicable
conduct with a willful and conscious disregard for the rights and safety of
others and are not aware of any contrary evidence.

Affirmative defense No.
21 (Preemption) was pled because the design, operation, and performance of the
2016 Model S are specified by Federal regulations which preempt conflicting
state law. Federal regulations and California legal decisions on this issue are
in the public record. Tesla anticipates this affirmative defense will be the
subject of expert testimony.

Notwithstanding the
above, to the extent this Interrogatory asks for more information, Tesla
objects that the Interrogatory asks for information protected by the
attorney-client privilege or the work product doctrine. Tesla also objects to
the extent the Interrogatory asks for the premature disclosure information to
be provided by expert witnesses pursuant to Code of Civil Procedure sections
2034.210 to 2034.310.

Moving Argument to Compel

Pursuant to Code of Civil
Procedure §2030.220(a), “each answer in a response to interrogatories shall be
as complete and straightforward as the information reasonably available to the
responding party permits.” The responding party must answer each interrogatory
“to the extent possible,” even if the question “cannot be answered completely,”
and must “state the truth, the whole truth, and nothing but the truth” in its
answers. Code of Civil Procedure §2030.220(b); Scheiding v. Dinwiddie Const.
Co. (1999) 69 CA4th 64, 76 (internal quotes omitted). Where the question is
specific and explicit, an answer that supplies only a portion of the
information sought is improper. It is also improper to provide “deftly worded
conclusionary answers designed to evade a series of explicit questions.” Deyo
v. Kilbourne (1978) 84 CA3d 771, 783.

Form Interrogatory No.
15.1 is essentially a contention interrogatory, which is both appropriate and
permitted by the Discovery Act. Code of Civil Procedure § 2030.010(b). Justine
is entitled to request “whether or not [Tesla] makes a particular contention,
either as to the facts or as to the possible issues in the case. (Universal
Underwriters Ins. Co. v. Superior Court, supra, 250 Cal.App.2d 722, 728; see
also Sheets v. Superior Court, 257 Cal.App.2d 1, 13.).” Burke v. Superior Court
of Sacramento County (1969) 71 Cal.2d 276, 281–282. Further, contention
interrogatories may properly require a party to state their contentions as to
both factual and legal issues. Code of Civil Procedure § 2030.010(b) (“An
interrogatory is not objectionable because the answer relates to...the
application of law to fact or would be based on legal theories.”) Contention
interrogatories are one of many pre-trial discovery procedures, which are
intended “to find out what the lawsuit is about, to simplify and define the
issues to be litigated, and to determine how the trial may proceed most
expeditiously. It is also to give notice of matters not necessarily revealed by
the pleadings where such matters may be issues in the case.” Universal
Underwriters Ins. Co. v. Superior Court (1967) 250 Cal.App.2d 722, 728. Seeking
information through a contention interrogatory is not only proper, “but
desirable.” Id. (emphasis added).

In responding to Form
Interrogatory No. 15.1, Tesla misconceives that the statement “there is no
defect” in the subject vehicle is not a contention or a defense. See, Arshad
Decl., ¶¶3 (Exhibit A2), 5 (Exhibit E). Despite its protestations otherwise,
Tesla has the burden of proof as to the existence or nonexistence of all facts
essential to its claimed defenses. EVID. CODE §500; Simpson Strong-Tie Company,
Inc. v. Gore (2010) 49 Cal.4th 12, 24. If Tesla contends that Justine’s
injuries were not caused by an alleged defect in the Tesla Model S, and that no
alleged defect existed, then it must provide a complete and straightforward
answer that identifies the supporting facts, persons, and documents developed
to this point. Code of Civil Procedure §2030.220(a).

Tesla cannot similarly
justify its refusal to provide this information by asserting the baseless
position that it “is not obligated to prove a negative”. See, Arshad Decl., ¶5
(Exhibit E). The burden is upon Tesla to prove its affirmative defenses;
Justine does not have the initial burden of disproving its affirmative
defenses. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 8561 ;
Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468. And, contrary
to Tesla’s purported position, mere conclusory assertions are not in fact “facts.”
Specifically,

· What specifically
about the diagnostic data log shows no evidence of a defect in the subject
vehicle?

· How did the Model
S and its component parts comply with all applicable industry and Federal
safety standards?

· What are the
facts that Tesla is aware of, or that Tesla can make a reasonable effort to
obtain, that would show that the subject vehicle and its component parts were
not defective when they left the manufacturer’s possession?

· What are the
specific Federal regulations and California regulations that the design,
operation, and performance of the 2016 Model S complied with?

A further response stating
“all facts” as the Interrogatory No. 15.1(a) asks is required – and Tesla must
also identify all persons and documents in support of the same in response to
subparts (b) and (c), respectively. Tesla may not evade this obligation by
providing “deftly worded conclusionary answers designed to evade a series of
explicit questions.” Deyo v. Kilbourne (1978) 84 CA3d 771, 783.

The information
“reasonably available” to Tesla with which to support its contentions is
substantial. The subject incident occurred almost four years ago. Discovery has
been ongoing since approximately September 2020. Arshad Decl., ¶6. Since that
time, Justine served her discovery responses on November 30, 2020, providing
answers and document production to 42 Special Interrogatories and 42 Requests
for Production of Documents, which substantiated her injuries and contentions.
Tesla also deposed Justine on August 17, 2022. Arshad Decl., ¶6. Tesla itself
produced two of its persons most knowledgeable for deposition related to the
defects Justine alleges caused her injuries – Eloy Rubio Blanco on March 18,
2022 and Madan Gopal on November 16, 2021 – and will produce a third person
most knowledgeable on February 1, 2023 for deposition. Arshad Decl., ¶6.

As the designer,
manufacturer, distributor, and seller of the Tesla vehicles, Tesla is the sole
entity in possession of the information related to its vehicles. Either Tesla
has facts, witnesses, and documents to support its denials and affirmative
defenses, or it does not. If it has no such information, then it must so state
and withdraw those defenses accordingly. It may not, however, simply sit back
and stonewall Justine during discovery.

The Code and supporting
caselaw are clear: if Tesla asserts affirmative defenses, it must present
evidence to support those defenses. Therefore, Justine respectfully requests
this Court compel further, verified, Code-compliant responses to Judicial
Council Form Interrogatory No. 15.1.

Tesla’s Arguments against
compelling

On
October 3, 2022, Tesla served its response to Form Interrogatory 15.1, which
set forth the bases for each of Tesla’s affirmative defenses. In its response,
Tesla specifically identified the Subject Vehicle’s diagnostic data log from
the time of the accident, the police report, and the publicly available Federal
Motor Vehicle Safety Standards as facts upon which the defenses were based and
documents supporting the defenses. (Arshad Decl. Ex. A-2.) In addition to its
substantive response, Tesla objected to the extent the interrogatory called for
the premature disclosure of information to be provided by expert witnesses
pursuant to Code of Civil Procedure sections 2034.210 to 2034.310. (Arshad
Decl. Ex. A-2.)

The California Code of
Civil Procedure requires that each answer to an interrogatory be as complete
and straightforward as the information reasonably available to the responding
party permits. (Code Civ. Proc. § 2030.220, subd. (a).) However, “[if] an
interrogatory cannot be answered completely, it shall be answered to the extent
possible.” (Code Civ. Proc. § 2030.220, subd. (b).) Tesla’s responses have
satisfied these requirements.

With respect to Form
Interrogatory 15.1, Tesla’s answer identified each affirmative defense and
provided the required information for each. Those stated facts included that
(1) the diagnostic data log from the time of the accident demonstrated no
evidence of a defect, (2) the police report concluded that Plaintiff herself
caused this collision by “turning her vehicle from a direct course on a roadway
without reasonable safety,” (3) the 2016 Model S and its component parts
complied with all applicable industry and Federal Motor Vehicle Safety
Standards, (4) Tesla has not been provided with any facts showing that the
Subject Vehicle or its component parts were defective when they left the
manufacturer’s possession, (5) Tesla did not engage in any despicable conduct
with a willful and conscious disregard for the rights and safety of others and
is not aware of any contrary evidence, and (6) the design, operation, and
performance of the 2016 Model S are specified by federal regulations which
preempt conflicting state law. Tesla’s response named the documents supporting
these facts. Tesla’s response is sufficient because it states the facts, and
Tesla is not required to provide additional detail to satisfy Plaintiff. While
Plaintiff may dispute those facts—as parties in lawsuits often do—they
nevertheless form the basis of Tesla’s affirmative defenses and are an
appropriate and complete answer to the interrogatory.

Plaintiff tries to paint
these facts as “conclusory assertions,” but a response is not conclusory just
because it is not as detailed as Plaintiff desires. (Id. (“Although the
responses were not detailed, they were factual and not conclusory.”)) If
Plaintiff believes that Tesla has insufficient facts to support its affirmative
defenses, Plaintiff may (1) utilize discovery to properly ask for that specific
information or (2) move for summary adjudication of the affirmative defenses.
It is no coincidence that Plaintiff ignored those options and chose the route
of requesting monetary discovery sanctions instead.

Plaintiff also cites to
authorities discussing the burden of proof for establishing an affirmative
defense. These are irrelevant. Tesla is not required to satisfy a burden of
proof at the time of its responses. Tesla responded that its investigation was
continuing and objected to the extent that the interrogatory asked for
premature disclosure of information to be provided by expert witnesses.
Plaintiff’s follow-up questions, which read like a new set of follow up
interrogatories, address subjects that call for premature disclosure of expert
testimony (or, in some cases, publicly available information), thereby
highlighting the appropriateness of Tesla’s response to the interrogatory. The
Court in Deyo v. Kilbourne, 84 Cal.App.3rd 771 (1978) aptly recognized that
“[o]ccasionally, overzealous counsel mistake the purpose of discovery.” (Deyo,
84 Cal.App.3d at 781.) The Deyo Court further stated, “[n]either party may
employ the discovery rules with the longrange objective of trapping the other
party into the imposition of sanctions, especially the imposition of the most
severe sanction dismissal.” (Id.) These concerns are ever present here, where
overzealous counsel has mistaken the purpose of discovery and is misusing it as
a strategy to gain an advantage by attempting to trap Tesla into the imposition
of sanctions.

As Tesla represented to
Plaintiff in its December 6, 2022, letter, “[t]here is simply nothing left for
Tesla to add to its responses” to Form Interrogatory 15.1. Plaintiff has not
established any legal basis to compel further responses to Form Interrogatory
15.1, and the Motion should be denied.

TENTATIVE RULING FROG
15.1

As
a preliminary matter, both moving and opposing arguments are difficult to
decipher. Both parties ramble without providing much specific context as to
which affirmative defense they are talking about in relation to FROG 15.1.

However, Defendant did
not provide code compliant responses, especially in consideration of the format
Defendant chose to utilize. This may be why both parties’ arguments are
difficult to understand.

“The party to whom
interrogatories have been propounded shall respond in writing under oath separately
to each interrogatory by any of the following:

(1) An answer
containing the information sought to be discovered.

(2) An exercise of
the party’s option to produce writings.

(3) An objection to
the particular interrogatory.” (CCP §2030.010.(a) [Emph. added.])

“Each
answer, exercise of option, or objection in the response shall bear the
same identifying number or letter and be in the same sequence as the
corresponding interrogatory. The text of that interrogatory need not be
repeated, except as provided in paragraph (6) of subdivision (d).” (CCP
§2030.210(c) [Emph. added.])

Here, FROG 15.1 asked
Defendant to identify each denial of a material allegation and each special or
affirmative defense. With respect to each denial/defense, Defendant was
supposed to address each subpart, here (a) – (c). In Defendant’s responses,
Defendant does not separately identify each affirmative defense, nor does
Defendant separately respond to each subpart of 15.1. Defendant is ordered to separately
identify each denial/affirmative defense, and separately identify the responses
to each subpart - (a) State all facts upon which you base the denial or special
or affirmative defense; (b) State the names, ADDRESSES, and telephone numbers
of all PERSONS who have knowledge of those facts; and (c) Identify all
DOCUMENTS and other tangible things that support your denial or special or
affirmative defense, and state the name, ADDRESS, and telephone number of the
PERSON who has each DOCUMENT.

Tesla’s responses as to
discovery/investigation still continuing is not a code compliant response. Tesla stated essentially no facts connected
with the affirmative defenses it has pled.

Tesla did not meet its
burden in establishing their objections regarding attorney-client privilege and
work product doctrine because Tesla provided no explanation as to how these
privileges apply, nor any privilege log.

Finally, Tesla’s
objection as to the interrogatory asking for premature disclosure information
to be provided by expert witnesses, this argument is unavailing.

Plaintiff’s motion to
compel further responses to FROG 15.1 is GRANTED. Defendant is to provide verified,
code compliant further responses within 15 days.

FROG 17.1 re: RFA 5

RFA 5

Admit
that the Autopilot system on the SUBJECT VEHICLE did not perform as intended by
Tesla at the time of the subject incident.

Response to RFA 5

Deny

FROG 17.1

Is your response to each
request for admission served with these interrogatories an unqualified
admission? If not, for each response that is not an unqualified admission:

(a) State the number of
the request;

(b) State all facts upon
which you base your response;

(d) Identify all
DOCUMENTS and other tangible things that support your response and state the
name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or
thing.

Response to FROG 17.1 re:
RFA 5

a)
Response to Request for Admission No. 5 (Set One)

b) In this incident, the
Autopilot system on the subject 2016 Model S, Hardware 1.0, performed as
intended and designed, consistent with the limitations set forth in the Owner’s
Manual. Tesla objects to the extent the Interrogatory asks for the premature
disclosure information to be provided by expert witnesses pursuant to Code of
Civil Procedure sections 2034.210 to 2034.310. Tesla will disclose expert
witnesses who will address Autopilot performance in this incident in accordance
with the applicable deadlines.

c) Eloy Rubio Blanco,
Tesla employee who may be reached through counsel. In addition, Tesla will
disclose expert witnesses in this case in accordance with the applicable
deadlines who will address Autopilot performance in this incident.

d) Tesla refers Plaintiff
to the documents previously produced in discovery relating to Autopilot for the
Model S, Hardware 1.0.

TENTATIVE RULING FROG
17.1 re: RFA 5

As
to 17.1(b), Tesla did not provide a code-compliant response, as it stated
conclusions, not facts supporting its contention that the Autopilot system
performed as intended.

As to 17.1(c), Defendant
did not provide a code compliant response. 17.1(c) says, “State the names,
ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those
facts.” Defendant did not do so. Tesla’s argument about expert witness
disclosure should by now be moot.

As to 17.1(d),
Defendant’s response is not code compliant. It is improper to refer Plaintiff
to other discovery.

The Court Grants
Plaintiff’s motion to compel further responses to FROG 17.1 re: RFA 5. Tesla to provide code compliant further
responses under oath within 15 days.

FROG 17.1 re: RFA 6

RFA 6

Admit
that the airbags on the SUBJECT VEHICLE did not perform as intended by Tesla at
the time of the subject incident.

Response to RFA 6

Deny.

FROG 17.1

Is
your response to each request for admission served with these interrogatories
an unqualified admission? If not, for each response that is not an unqualified
admission:

(a) State the number of
the request;

(b) State all facts upon
which you base your response;

(d) Identify all
DOCUMENTS and other tangible things that support your response and state the
name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or
thing.

Response to FROG
17.1 re: RFA 6

a)
Response to Request for Admission No. 6 (Set One)

b) In this crash,
the driver frontal airbag in the subject 2016 Model S properly deployed in
accordance with its design and performance criteria. Tesla objects to the
extent the Interrogatory asks for the premature disclosure information to be
provided by expert witnesses pursuant to Code of Civil Procedure sections
2034.210 to 2034.310. Tesla will disclose expert witnesses who will address
airbag design and performance in this crash in accordance with the applicable
deadlines

c) Madan Gopal,
Tesla employee who may be reached through counsel. In addition, Tesla will
disclose expert witnesses in this case in accordance with the applicable
deadlines who will address airbag design and performance in this crash.

d) Tesla refers
Plaintiff to the documents previously produced in discovery relating to airbag
design, performance and testing for the Model S. Response to Request for
Admission No. 7 (Set One)

TENTATIVE RULING FROG
17.1 re:RFA 6

As
to 17.1(b), the Court applies the same reasoning as to 17.1 (b)—RFA 5.

As to 17.1(c), Defendant
did not provide a code compliant response. 17.1(c) says, “State the names,
ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those
facts.” Defendant did not do so. Further, Tesla’s argument as to expert witness
disclosure is by now moot.

As to 17.1(d),
Defendant’s response is not code compliant. It is improper to refer Plaintiff
to other discovery.

The Court Grants
Plaintiff’s Motion to Compel further responses to 17.1 re: RFA 6.
Tesla to provide code compliant response under oath within 15 days.

re: RFA 7

RFA 7

Admit
that Elon Musk is a final decision-maker on Tesla recalls.

Response to RFA 7

Deny

FROG 17.1

Is
your response to each request for admission served with these interrogatories
an unqualified admission? If not, for each response that is not an unqualified
admission:

(a) State the number of
the request;

(b) State all facts upon
which you base your response;

(d) Identify all
DOCUMENTS and other tangible things that support your response and state the
name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or
thing.

Response to FROG 17.1 re: RFA 7

a)
Response to Request for Admission No. 7 (Set One)

b) Mr. Musk is not the “final decision-maker” on Tesla recalls.

c) Tesla’s field quality and homologation teams. Tesla’s employees may be
reached through counsel.

d) There are no non-privileged responsive documents.

Tentative Ruling FROG 17.1 re:RFA 7

As
to 17.1(b), the Court finds Defendant’s response evasive and not
straightforward. Tesla denied that Elon Musk is a final decision-maker on Tesla
recalls; however, as pointed out in the moving arguments, the response in 17.1(b)
states, “Mr. Musk is not the final decision-maker.” This is
evasive to the request because “the” and “a” mean different things.

As to 17.1(c), Defendant did not provide a code
compliant response. “ State the names, ADDRESSES, and telephone numbers of all
PERSONS who have knowledge of those facts.”

As to 17.1(d) is not code compliant as Tesla does not
state whether it made a diligent and thorough search.

Plaintiff’s motion to compel further responses with
respect to 17.1(b), (c), and (d) with respect to RFA 7 is Granted. Tesla to provide code compliant response
under oath within 15 days.

SANCTIONS

“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 further 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
§2030.300(d).)

Plaintiff asks for sanctions as follows: 8.5 hours
drafting this Motion, which includes preparation of the motion, the Separate
Statement of Interrogatories and Responses in Dispute, and Declaration. The fee
for filing this Motion is $60.00. Counsel anticipates spending another 3 hours
to prepare a Reply to any Opposition, and another 2 hours preparing for and
attending the hearing for this matter. The hourly rate is $375.00, which is
reasonable. Accordingly, it is anticipated that the total fee and costs associated
with this Motion is $5,122.50.

Defendant asks for sanctions as follows: Dmitriy
Kopelevich and Michael R. Carey have spent in excess of 6 hours preparing this
Opposition, which includes preparation of the Opposition memorandum, the
Separate Statement of Interrogatories and Responses in Dispute, and this
Declaration. The fee for filing this Opposition is $60.00. Counsel anticipate
spending another 2 to 4 hours evaluating Plaintiff’s Reply to this Opposition
and preparing for and attending the hearing for this Motion. The anticipated
total fees and costs associated with this Motion are well in excess of
$3,000.00, which Tesla has requested in monetary sanctions against Plaintiff
for filing this Motion without substantial justification and engaging in abusive
discovery conduct.

The Court awards reasonable discovery sanctions to
Plaintiff against Defendant Tesla, in view of the Court’s rulings on this
motion and the bases therefor, in the amount of $4,000.00. Tesla to pay within 30 days.