Judge Edward B. Moreton, Jr., Case Number: 20STCV31824, Date: 2023-08-24 Tentative Ruling

Judge: Edward B. Moreton, Jr., Case: 20STCV31824, Date: 2023-08-24 Tentative Ruling

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

CROWN COACHWORKS, INC., et al.,

Plaintiffs,

AMERICAN HONDA MOTOR COMPANY, INC., et al.,

Defendants.

Case No.: 20STCV31824

Hearing Date: August 24, 2023

ORDER RE:

DEFENDANT AMERICAN HONDA

MOTOR CO., INC.’S AMENDED MOTION

TO COMPEL FURTHER RESPONSES TO

REQUESTS FOR PRODUCTION SET FOUR

AND FOR SANCTIONS IN THE AMOUNT

OF $2750

MOVING PARTY: Defendant American Honda Motor Company, Inc.

RESPONDING PARTY: Plaintiffs Crown Coachworks, Inc. and the Jacob & Martine

This case arises from a fire at a business owned by Plaintiffs Crown Coachworks, Inc. and the Jacob & Martine Dunkel Family Trust. Plaintiffs allege the fire was due to a lithium ion battery in a 2014 Honda Accord Hybrid manufactured by Defendant American Honda Motor Company, Inc. (“Honda”). As a result of the fire, the building which housed Plaintiffs’ office and equipment was destroyed. In addition, there were eleven cars parked within the building that were also a total loss.

Plaintiffs presented a claim to their insurer, AMCO, for the fire damage, as well as a claim for loss of income. AMCO paid the policy limits, which were approximately $1 million. At the same time, AMCO made a subrogation claim against Honda and initiated an investigation during the cause of the fire. During that investigation, on September 20, 2018 and February 13, 2019, AMCO representatives, Plaintiffs, Honda’s former counsel and a Honda fire cause and origin expert inspected the Accord. (Tabak Decl. ¶¿4.)

On December 17 and 18, 2019, KARS Advanced Materials, Inc. (“KARS”) a consultant AMCO retained conducted metallurgical evaluation and radiography of the top row of the hybrid battery cells and related components and a jump starter battery pack that was found melted into the Accord right rear seat after the fire. (Id. ¶¿5.) AHM was not permitted to take or remove the hybrid battery components for the purpose of its own examination, though it had representatives present at the inspection. (Id. ¶¿5.) KARS ultimately determined the fire originated in the jump starter battery pack, not the Accord lithium ion battery assembly. AMCO then withdrew its subrogation claim against Honda. (Id.)

All of these investigations took place before Plaintiff filed suit on August 20, 2020. Honda’s current counsel and all but one of the liability experts Honda anticipates designating for the forthcoming trial have never seen the Accord, the hybrid battery components Plaintiffs claim are defective, or the jump starter battery pack KARS concluded started the fire. (Id. ¶¿6.)

On September 26, 2022 and November 3, 2022, Honda took the deposition of Plaintiffs’ battery expert, Greg Barnett. Barnett revealed he inspected the Accord and hybrid components “three times.” (Ex. A to Tabak Dec.) Barnett opined there was a “substantial probability [the fire ignited due to a] … manufacturing defect in one of the cells” and that “separator fail[ure] most likely what happened.” (Ex. B to Tabak Dec.) In support of this theory, Barnett pointed to “copper spatter against the bulkhead” that separates the trunk from the Accord rear seat. Specifically, he concluded copper was ejected from a defective cell that opened before or during the fire. (Ex. A to Tabak Dec.)

On March 3, 2023, Honda served its request for production of documents set four on Plaintiffs. The requests asked Plaintiffs to produce for a non-destructive inspection of the following:

The 2014 Honda Accord VIN JHMCR578EC000983 (No. 78)
All components, items, equipment and materials including the melted 12V jump starter, removed from the 2014 Honda Accord (No. 79) and

All lithium ion battery cells and battery components removed from the 2014 Honda Accord (No. 80)

(Ex. C to Tabak Dec.; Tabak Dec. ¶¿9.)

Plaintiffs served its responses, which consisted of the same objections to each request: “To respond to this request would be oppressive and burdensome to this responding party in that the 2014 Honda Accord … including the lithium ion battery, has previously been produced on multiple occasions for joint inspection including for destructive testing performed by requesting party, in anticipation of litigation and as a result there is no good cause for this responding party to again produce the requested item(s) as it is unreasonably cumulative or duplicative.” (Ex. D to Tabak Dec.)

This hearing is on Honda’s motion to compel further responses to its requests for production of documents, set four. Honda argues good cause exists to compel production of the items responsive to its requests for production because its counsel and experts must inspect the Accord and hybrid battery components to fully evaluate and rebut Plaintiffs’ defect theories. Honda also argues Plaintiffs’ objections have no merit because the inspection is not unduly burdensome as it requires only three to six hours of inspection, and the request is not cumulative because Honda never conducted destructive testing on the components at issue.

LEGAL STANDARD

Pursuant to Code Civ. Proc. § 2031.210(b), a motion to compel further responses to a request for production “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” To establish good cause, the burden is on the moving party to show both the relevance (e.g., how the information in the documents would tend to prove or disprove some issue in the case) and specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial. (Weil & Brown,¿Civ. Proc. Before Trial,¿¶¿8:1495.6.) The fact that there is no alternative source for the information sought is an important factor in establishing good cause for a request for production. (Id.)

“Where … there is no privilege issue or claim of attorney work product, that burden [to show good cause] is met simply by a fact-specific showing of relevance.” (Glenfed Development Corp. v. Sup. Ct. (1997) 53 Cal.App.4th 1113, 1117.) Information is relevant where it “might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement. Admissibility is not the test, and it is sufficient if the information sought might reasonably lead to other, admissible evidence.” (Id. at 1113 (citations omitted, emphasis in original).)

EVIDENTIARY OBJECTIONS

The Court overrules Objection Nos. 1, 5, 6, 7, 8, 9, 10, 11, 16, 19 and 20 and sustains Objection Nos. 2, 3, 4, 12, 13, 14, 15, 17 and 18 to the Declaration of Martin Berman. The Court also overrules the objections to the Supplemental Declaration of Jordan Tabak.

The Court first addresses whether Honda’s motion to compel is untimely. The Court concludes it is not.

Pursuant to Code Civ. Proc. § 2031.310(c), the moving party must give notice of a motion to compel further responses “within 45 days of the service of the verified response.” The deadline to file a motion to compel runs from the date the verified response is served. (Golf & Tennis Pro Shop, Inc. v. Sup. Ct. (2022) 84 Cal.App.5th 127, 135.) However, Plaintiffs’ response consists of objections only and need not be verified. Accordingly, the 45 day period began to run on March 15, 2023, when Plaintiffs served their objections by email, and the deadline to file a motion to compel was May 2, 2023 (45 calendar days plus 2 court days for electronic service). Honda filed its motion to compel on May 1, 2023, before the May 2, 2023 deadline. While the Court later denied the motion without prejudice as failing to comply with this Department’s rules on joint statements, that does not mean a motion correcting that deficiency is now untimely. Honda complied with the procedural requirements that applied to the motion when it was filed within the 45 day deadline, before a different department. Moreover, by denying the motion without prejudice, the Court “impliedly invites the moving party to renew the motion at a later date, when [it] can correct the deficiency that led to the denial.” (Farber v. Bay View Terrace Homeowners Ass’n (2006) 141 Cal.App.4th 1007, 1015.)

The Court now turns to the merits of Honda’s motion to compel. Honda argues there exists good cause to compel production of the items responsive to its document requests. The Court agrees.

There is no dispute that Honda has neither previously demanded an inspection of the items responsive to its request for production nor has it inspected the responsive items. Plaintiffs contend however that the pre-litigation inspections arranged by AMCO and Nationwide Insurance were “conducted in anticipation of litigation” and Honda had “full and complete access to the Honda Accord and its component parts over (2) days of destructive testing” in December 2019. But Plaintiff has cited no authority that stands for the proposition that inspections conducted during a pre-suit insurance claim abrogate a party’s right demand an inspection pursuant to Code Civ. Proc. § 2031.010-020.

Further, there is no dispute that the inspection seeks relevant information. The inspection will enable Honda and its experts to evaluate and analyze (1) the fire damage to the melted jump starter battery pack, and the evidence on that pack that may indicate it sparked the fire; (2) which of the bulkhead facing cells on the bottom row of the Accord hybrid battery pack opened, if any, during the fire; (3) whether any cells that comprise the battery pack ejected copper, which Plaintiffs’ expert claims is evidence the fire originated in the hybrid battery cells; (4) whether a cell opened in the vicinity of the copper spatter on the bulkhead Plaintiffs’ expert opined is evidence of a “likely” manufacturing defect; (5) whether there is evidence of electrical arcing that could have deposited that copper spatter on the bulkhead, and (6) to observe first hand and evaluate evidence of the propagation of the fire. (Tabak Dec. ¶¶¿14, 15.)

Moreover, there is no reasonable alternative source other than an inspection of the tangible items requested in Honda’s requests for production. Honda cannot inspect the Accord and its component parts because Plaintiffs are in possession of them. Moreover, while there are photographs of the battery components and cells, they do not show in detail each of the cells, their orientation relative to the bulkhead, or the proximity of the bottom row cells to the copper spatter Plaintiffs’ expert claims is evidence of a defect. These photographs are not a substitute for an in-person inspection.

Plaintiffs contend good cause does not exist because Tom Livernois, an expert Honda initially retained during the pendency of the AMCO claim, submitted a declaration that indicates he “had full and complete access to the Honda accord and its component parts over two (2) days of destructive testing” in December 2019, as a result of which Honda had “more than ample opportunity for the vehicle to be fully and completely inspected by Honda’s chosen experts.” But the Livernois declaration does not say Livernois inspected the Accord (or the bottom row of the battery pack) during the December 2019 inspection.

Honda also argues that Plaintiffs’ objections are without merit. The Court agrees.

Plaintiffs’ objections are: (1) Honda failed to demonstrate good cause for the inspection, (2) the inspection is oppressive and burdensome because the Accord has previously been produced including destructive testing performed by requesting party, and (3) the inspection is unreasonably cumulative. The burden of proof is on the party making an objection to substantiate it. (Coy v. Sup. Ct. (1962) 58 Cal.2d 210, 220.) Plaintiffs cannot meet that burden.

First, for reasons set forth above, the Court concludes Honda has shown good cause. Second, the inspection is not unduly burdensome. All Plaintiffs have to do is to produce the Accord and its component parts for an inspection that is estimated to take between three and six hours. Plaintiffs do not specify the cost(s) associated with moving the “component battery parts” to the body shop where the Accord is being stored or identified where those component parts are so the Court can evaluate the burden of moving them. Nor have Plaintiffs revealed where their “out of state” expert is located, how much the expert bills per hour, or how much he will charge Plaintiffs to travel to California. Plaintiffs have made no showing that the “resulting cost, time, expense and disruption of normal business” associated with the inspection outweigh its probative value. (Volkswagen v. Superior Court (2006) 139 Cal.App.4th 1481, 1497.) Third, the inspection is not cumulative. Honda has not previously demanded an inspection, nor has Plaintiffs produced the car for a post-complaint inspection. (Tabak Dec. ¶¿6.)

Honda also seeks monetary sanctions pursuant to Code Civ. Proc. §2023.010 because it argues Plaintiffs engaged in a misuse of the discovery process by “failing to respond or to submit to an authorized method of discovery” and “making, without substantial justification, an unmeritorious objection to discovery.” While the Court concludes Plaintiffs’ objections are ultimately unsuccessful, the Court cannot conclude they were made without substantial justification. Plaintiffs had a reasonable basis to argue the discovery was cumulative given the extent of the pre-litigation inspections that were conducted, albeit without Honda doing any independent testing of its own.