Judge: Gary Y. Tanaka, Case: 19TRCV00948, Date: 2022-08-04 Tentative Ruling



Case Number: 19TRCV00948    Hearing Date: August 4, 2022    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

 


 

Honorable Gary Y. Tanaka                                                                                                        Thursday, August 4, 2022

Department B                                                                                                                                                Calendar No. 2

 


 

 

PROCEEDINGS

 

Rosa Gabriela Dominguez v Volvo Cars of North America, LLC, et al.

19TRCV00948

  1. Volvo Cars of North America, LLC’s Motion to Compel Vehicle Inspection 

     

     

    TENTATIVE RULING

     

                Volvo Cars of North America, LLC’s Motion to Compel Vehicle Inspection is denied.

     

                Background

     

                Plaintiff’s Complaint was filed on October 22, 2019.  Plaintiff alleges the following facts.  Plaintiff purchased a 2016 Volvo XC60 vehicle, which was manufactured and distributed by Defendant.  The vehicle suffers from defects, including defects to the transmission system, electrical system, braking system, suspension system, and engine. Defendant has not been able to repair the vehicle and Defendant has refused to repurchase the vehicle. Plaintiff alleges a violation of the Song-Beverly Consumer Warranty Act (“Song-Beverly Act”).

     

                Motion to Compel Further Responses to Requests for Production or Inspection of Documents or Tangible Things

     

                A party responding to an inspection demand shall respond to each demand with one of the following:  a statement the party will comply with the demand, a representation the party lacks the ability to comply with the demand, or an objection.  (Code Civ. Proc., § 2031.210, subd. (a).)  A response to an inspection demand may be inadequate because it is evasive or incomplete; contains an incomplete statement of compliance; an inadequate, incomplete, or evasive representation of inability to comply; or meritless or overly general objections to a demand.  (Code Civ. Proc., § 2031.310, subd. (a).)

     

                If a demanding party believes the responding party responded inadequately, the demanding party may move for an order compelling further response.  (Code Civ. Proc., § 2031.310, subd. (a).)  “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 demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.”  (Code Civ. Proc., § 2031.310, subd. (c).)

     

                Cal. Rules of Court, Rule 3.1345 states in relevant part:

     

                “(a) Separate Statement required

                Except as provided in (b), any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion:

                (3) To compel further responses to a demand for inspection of documents or tangible things;

                (b) Separate statement not required

                A separate statement is not required under the following circumstances:

                (1) When no response has been provided to the request for discovery; or

                (2) When a court has allowed the moving party to submit--in place of a separate statement--a concise outline of the discovery request and each response in dispute.”

     

                Meet and Confer

     

                Defendant failed to set forth an adequate meet and confer declaration in sufficient compliance with CCP § 2031.310(b)(2) and CCP § 2016.040. Declarant admits that Plaintiff’s response to the inspection demand was received on June 29, 2022. However, there is no showing of any meet and confer attempt after receipt of the response. Instead, declarant simply sets forth a conclusion that meet and confer efforts were made with no facts to document and corroborate the meet and confer efforts. (Decl., Austin R. Henderson, ¶¶ 6-8).

     

                Motion to Compel Inspection

     

                Defendant moves for an order compelling Plaintiff to produce her 2016 Volvo XC90, VIN: YV440MDK3G2854285, (“Subject Vehicle”) for a vehicle inspection.  On June 23, 2022, Defendant served a “Second Amended Notice of Vehicle Inspection” and unilaterally set the date of inspection for July 8, 2022.

     

                Code Civ. Proc., § 2031.030(c)(2) states:

     

                “Each demand in a set shall be separately set forth, identified by number or letter, and shall do all of the following:

    (2) Specify a reasonable time for the inspection, copying, testing, or sampling that is at least 30 days after service of the demand, unless the court for good cause shown has granted leave to specify an earlier date. In an unlawful detainer action or other proceeding under Chapter 4 (commencing with Section 1159) of Title 3 of Part 3, the demand shall specify a reasonable time for the inspection, copying, testing, or sampling that is at least five days after service of the demand, unless the court, for good cause shown, has granted leave to specify an earlier date.”

     

                First, the demand for inspection is defective on its face as it did not set a date for inspection at least 30 days after service of the demand and Defendant did not obtain leave for an earlier inspection date.  Second, with the initial motion, Defendant failed to file a proper meet and confer declaration which mandates denial of this motion.  Third, Defendant failed to file a separate statement which mandates denial of this motion.  Finally, Defendant failed to establish good cause for a second vehicle inspection.

     

                In a declaration filed, for the first time, with the Reply, Defendant’s counsel finally attempts to document his meet and confer efforts.  (Decl., Austin R. Henderson, dated July 28, 2022.)  However, filing new evidence with the Reply has deprived Plaintiff the opportunity to meaningfully respond to this newly filed declaration. Further, even if considering this improper declaration, Defendant’s counsel only documents meet and confer efforts occurring after the motion was filed.

     

                Therefore, Defendant’s motion to compel vehicle inspection is denied.

     

                The Court also notes that, curiously, with the Reply, Defendant set forth a request for monetary sanctions which was not mentioned nor noticed in the original motion. Further, no attempt to corroborate or support the amount of sanctions sought is even mentioned in the improperly filed declaration of Austin R. Henderson, dated July 28, 2022. Of course, this request for sanctions is also denied.

     

                Plaintiff is ordered to give notice of this ruling.