Judge: David A. Rosen, Case: 23GDCV00081, Date: 2023-09-01 Tentative Ruling
Case Number: 23GDCV00081 Hearing Date: September 8, 2023 Dept: E
Case No: 23GDCV00081
Hearing Date: 09/08/2023 – 8:30am
Trial Date: 10/07/2024
Case Name: ROBERTO CARLOS ALVAREZ, an individual
v. SUBARU OF AMERICA, INC., a New Jersey Corporation, and DOES 1-10 inclusive
Defendant,
Subaru of America, Inc. (SOA or Defendant) moves the Court for an order:
(1)
Compelling Plaintiff to make his vehicle available for inspection; and
(2)
Setting the date of the vehicle inspection.
(3) Imposing monetary sanctions against
Plaintiff Roberto Carlos Alvarez and his attorneys, Quill & Arrow, LLP, in
the sum of $1,560.00 for Plaintiff’s failure to produce the subject vehicle for
inspection and testing, for the failure of counsel to meet and confer in good
faith with respect to the production of Plaintiff’s vehicle for inspection and
testing, and for the requiring SOA to file this Motion.
II.
BACKGROUND
Plaintiff filed a Complaint on 01/17/2023
alleging three causes of action for: (1) Violation of Song-Beverly Act – Breach
of Express Warranty, (2) Violation of Song-Beverly Act – Breach of Implied
Warranty, and (3) Violation of the Song-Beverly Act Section 1793.2.
The instant action surrounds allegations
pertaining to a 2020 Subaru WRX purchased on July 8, 2021. Plaintiff alleges
that the Subject Vehicle was delivered to Plaintiff 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.
III.
ANALYSIS
Defendant’s counsel argues that several emails
were sent to Plaintiff’s counsel requesting dates for a vehicle inspection.
Defendant states that after several emails went
unanswered as to setting a date for the vehicle inspection, Defendant served a Demand
for Production of Vehicle for Inspection and Testing on April 3, 2023 which was
to occur on May 3, 2023.
Defendant states that on April 4, 2023, counsel
sent another email to Plaintiff asking if Plaintiff will produce the vehicle,
and Plaintiff’s counsel informed Defendant he will not produce the vehicle on
May 3, 2023.
Defendant states it made four subsequent
attempts to reschedule the inspection and Plaintiff failed to respond to all of
Defendant’s emails.
On page 3 of Defendant’s motion in section
“III,” Defendant argues:
Code of Civil Procedure section 2031.010,
subdivision (c) gives litigants the right not merely to inspect, but also to
photograph and test, any tangible thing in another party’s possession, custody,
or control. Code of Civil Procedure section 2031.310, subdivision (a) permits a
party to file a Motion to compel an inspection.
(Def. Mot. p. 3.)
Defendant cites 2031.010(c), which states, “A
party may demand that any other party produce and permit the party making the
demand, or someone acting on the demanding party’s behalf, to inspect and to
photograph, test, or sample any tangible things that are in the possession,
custody, or control of the party on whom the demand is made.”
Defendant also argues that CCP §2031.310(a)
permits a party to file a motion to compel an inspection.
Either way, it isn’t entirely clear as to the
statutory basis for Defendant’s motion as Defendant does not indicate in any
clear manner what statutory requirements it is complying with by filing this
motion.
To add further confusion, Defendant requests
sanctions under 2025.450(g)(1) and 2031.310(h). Although 2031.310(h) applies to
sanctions with respect to compelling further responses, 2025.450(g)(1) applies
to compelling a deposition. Defendant here does not appear to be attempting to
compel a deposition; thus, the Court is uncertain as to why Defendant is citing
this statute.
Generally, it is true that a failure to oppose a
motion amounts to a concession on the merits of the motion. The Court has not been pointed to a reason
why the Defendant’s inspection request—which appears reasonable in this
case—should not be complied with.
IV.
TENTATIVE RULING
Defendant’s motion to compel the vehicle
inspection is GRANTED. Again, the
Plaintiff chose not to file an opposition to the request. Though there is some
ambiguity as to the statutory basis in which Defendant is moving to compel this
inspection, in the Court’s view, the request for inspection appears entirely
reasonable in this case.
The question of potential sanctions will be
addressed at the hearing.