Judge Holly J. Fujie, Case Number: 23STCV27579, Date: 2024-11-25 Tentative Ruling

This matter stems from a complaint (the “Complaint”) filed on November 9, 2023 by Paola Martinez and Beatriz Vergara (collectively, “Plaintiffs”) based upon their ownership of a 2022 Kia K5 automobile (the “Vehicle”). (Compl., ¶5.) Plaintiffs allege in their Complaint that the Vehicle presented defects soon after their purchase and the manufacturer Kia America, Inc. (the “Defendant”) failed to conform the Vehicle to warranty.

The Complaint alleges both (1) breach of the implied warranty of merchantability under the Song-Beverly Warranty Act and (2) breach of express warranty under the Song-Beverly Warranty Act.

The motion now before the Court is Plaintiffs’ Motion for Monetary Sanctions (the “Motion”); Defendant filed an opposition to the Motion and Plaintiffs file a reply.

Code of Civil Procedure “section 128.7 applies solely to attorney misconduct in the filing or advocacy of groundless claims made in signed pleadings and other papers.” (Clark v. Optical Coating Lab. (2008) 165 Cal.App.4th 150, 164.) A violation of any of the conditions of Section 128.7(b) (which includes (1) improper purpose, (2) frivolous claims, defenses or contentions, (3) lack of evidentiary support or likely support and (4) lack of evidentiary support or reasonable bases on lack of information as to denials), may support an award of sanctions. (Eichenbaum v. Alon (2003) 106 Cal. App. 4th 967, 976.)

Whether a claim, defense or contention is frivolous is measured objectively. (Bockrath v. Aldrich Chem. Co. (1999) 21 Cal.4^th 71, 82.) Code of Civil Procedure section 128.7 requires bad faith conduct by the person to be sanctioned. (Interstate Specialty Marketing, Inc. v. ICRA Sapphire, Inc. (2013) 217 Cal.App.4th 708, 710 [“attaching the wrong draft of a contract … to a … complaint does not appear to be, under the particular circumstances of this case …, sanctionable at all…. Only lamentable inattention was shown ….”].)

Additionally, “A trial court may order a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” (Code Civ. Proc. §128.5(a).)

(1) Enter a finding of liability against Defendant on the issues of breach of the express/implied warranty and a finding of civil penalty exposure and that a prove up hearing on damages be set; or

(2) In the alternative, preclude Defendant from putting forth a “good faith” defense to Plaintiffs’ civil penalty claim and preclude Defendant from offering any evidence or testimony in support of such a defense; and

(3) Impose monetary sanctions in the amount of $2,464.20 jointly and severally against Defendant and their counsel.

Plaintiffs contend this request is justified because of Defendant’s willful failure to comply with a May 9, 2024 Court order (the “IDC Order”) that arose from the parties’ participating an Informal Discovery Conference (the “IDC”). As a result of participating in the IDC, the parties stipulated to the issuance of an order that the parties would do the following:

(1) Meet and confer and set a date certain for the deposition(s) of employees of Kia Downtown of Los Angeles (the dealer) by one week from the date of the IDC order;

(2) Defendant was to provide Plaintiffs with the last known contact information for the escalated case administrator who evaluated the repurchase order for the Vehicle by one week from the date of the IDC Order;

(3) Defendant was to provide Plaintiffs with the name and contact information of the Call Center in Arizona and the two employees of that Call Center that were involved in the repurchase request on the Vehicle by one week from the date of the IDC Order;

(4) Defendant was to serve Plaintiffs with further written, code-compliant and verified responses, without additional objections, to the Form Interrogatories, Special Interrogatories, Requests for Production and Requests for Admissions previously served on Defendant by Plaintiffs by three weeks of the date of the IDC Order, together with all responsive documents.

Plaintiffs contend that Defendant specifically failed to comply with items three and four as of the date of filing of the moving papers, August 20, 2024. The deadline to comply with item three was May 16, 2024, and the deadline to comply with item four was May 30, 2024.

Upon opposition Defendant contends the Motion is moot because items three and four were complied with on November 12, 2024, the same day the opposition papers were filed and well after the deadlines of compliance for both items. Upon reply Plaintiffs reiterate this still demonstrates a failure of compliance. The Court agrees.

The Court was specific in its IDC Order as to what tasks were to be completed, and by when. Defendant failed to complete the tasks in a timely manner and provides no explanation for the delay in their opposition papers. Defendant argues they did not engage in discovery abuses; however, compliance was only achieved after six months and the filing of the instant Motion.

Sanctions are warranted; however, evidence or issue sanctions may be imposed only after parties violated discovery orders compelling further responses, except in exceptional circumstances, including where there was sufficiently egregious misconduct regarding a failure to respond to discovery, where any further order would be futile. (New Albertsons, Inc. v. Sup. Ct. (2008) 168 Cal.App.4th 1403, 1426.) The Court’s docket does not show a violation of an order compelling further responses. Moreover, although the conduct here is an abuse of the discovery process, the facts do not show egregious misconduct. Given the circumstances at this time, evidence or issue sanctions are unnecessary, and monetary sanctions are sufficient. Therefore, the Court shall impose monetary sanctions of $2,464.20 jointly and severally against Defendant and their counsel.

Plaintiffs Motion is GRANTED. However, the Court declines to issue evidence or issue sanctions at this time. The Court shall solely impose monetary sanctions in the amount of $2,464.20, assessed jointly and severally against Defendant and their counsel. Monetary sanctions are to be paid to Plaintiffs within 10 days of this order.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court