Judge Kerry Bensinger, Case Number: 22STCV09188, Date: 2024-11-13 Tentative Ruling

PLAINTIFF’S MOTION TO COMPEL COMPLIANCE WITH THE COURT’S DISCOVERY ORDER DATED MAY 22, 2024, AND REQUEST FOR MONETARY SANCTIONS

This is a Song-Beverly action. On December 29, 2023, plaintiff Maria Hernandez (Plaintiff) filed a motion to compel defendant Kia America, Inc. (Kia), to provide further responses to Plaintiff’s Request for Production of Documents (RPD), Set Two, Nos. 49 and 51.

On May 22, 2024, the court granted in part Plaintiff’s motion as to RPD No. 51. Kia was directed to provide a further response to RPD No. 51 within 30 days of the court’s order. However, Kia did not provide a further response.

On August 8, 2024, Plaintiff filed this motion to compel Kia to comply with the court’s May 22, 2024, order. Plaintiff requests monetary sanctions against Kia and its counsel.

As a threshold issue, Kia indicates it served a further response to RPD No. 51 on October 29, 2024. Plaintiff acknowledges receipt of the responses. Accordingly, the motion is MOOT. The court proceeds to consider the request for monetary sanctions

Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as: making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.¿ (Code Civ. Proc., § 2023.010.)¿¿¿¿

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction.¿¿¿

Kia argues sanctions are not warranted because Kia complied with the court’s May 22, 2024, order by serving further responses on October 29, 2024. (Pratty Decl., ¶ 7.) Kia explains the reason further responses were only recently served because “it took much longer than expected to assemble and sift through the records to obtain responsive documents. To the extent that KA could formulate a reasonable search of its electronically stored information regarding the Vehicle, production of the information involves more than a simple stroke of the keys. Someone with technical expertise has to review and analyze the potential matches to determine whether any particular “match” actually had any conceivable relation to Plaintiff’s complaints. KA’s attorneys would then have to review the data to determine whether it was actually responsive to Plaintiff’s Request(s).” (Pratty Decl., ¶ 6.)

In reply, Plaintiff argues Kia had anywhere from four months (counting from the court’s, May 22, 2024, to the filing of this motion) to thirty months (counting from April 2022, when Plaintiff propounded the discovery request) to provide a response to RPD No. 51.

The court finds the imposition of some sanctions is warranted. Kia waited until the day before its opposition was due to serve the further response. Further, there is no evidence to show Kia communicated the challenges it was experiencing in complying with the May 22, 2024, order. Accordingly, the court imposes sanctions of $510, consisting of one hour at Plaintiff’s counsel’s hourly rate, and $60 in filing fees.

However, the court declines to impose sanctions against Kia’s counsel. “[W]hen a party seeking sanctions against an attorney offers sufficient evidence of a misuse of the discovery process, the burden shifts to the attorney to demonstrate that he or she did not recommend that conduct. (Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 81.) As discussed above, counsel explains the difficulties in sifting through the records and obtaining responsive documents. Kia’s counsel did not counsel the discovery abuse.

The request for sanctions is GRANTED in part. Sanctions are imposed against Defendant Kia America, Inc. in the sum of $510, to be paid to Plaintiff, by and through her counsel, within 30 days of this order.

Kerry Bensinger

Judge of the Superior Court