Judge Lee W. Tsao, Case Number: 22NWCV01143, Date: 2024-01-23 Tentative Ruling

Judge: Lee W. Tsao, Case: 22NWCV01143, Date: 2024-01-23 Tentative Ruling

Case Number: 22NWCV01143 Hearing Date: January 23, 2024 Dept: C

Ana Teresa Garcia vs American Honda Motor Co., Inc.

Case No.: 22NWCV01143

Hearing Date: January 23, 2024 @ 9:30 AM

Tentative Ruling

I. Defendant American Honda Motor, Co., Inc’s Motion to Compel Inspection of the Subject Vehicle is GRANTED.

II. Defendant’s Motion for Monetary Sanctions is GRANTED.

Defendant to give notice.

Background

This action is a breach of warranty case under the Song-Beverly Consumer Warranty Act (Cal. Code. Civ. Proc. §§ 1790, et seq.) arising out of Plaintiff Ana Teresa Garcia’s (“Plaintiff”) purchase of a 2022 Honda Civic, bearing the VIN 2HGFE2F50NH516826 (the “Subject Vehicle”) on or around August 6, 2021. The Subject Vehicle was sold to Plaintiff with express and implied warranties from Defendant AMERICAN HONDA MOTOR CO., INC. (“Defendant”). During the warranty period, Plaintiff has alleged that the Subject Vehicle contained or developed defects, including engine and suspension system defects. According to the repair and warranty records, Plaintiff presented the Subject Vehicle to Defendant’s authorized repair facility on numerous occasions for the defects. (Declaration of David Derderian ¶ 4.)

On December 5, 2022, Defendant served Plaintiff with a Demand for Vehicle Inspection for an inspection date of January 11, 2023. (See Chang Decl., ¶ 4; Exhibit A.)

On December 6, 2022, Plaintiff’s counsel served objections to the Demand for Vehicle Inspection and indicated Plaintiff will not appear for a vehicle inspection on January 11, 2023, on the grounds that Plaintiff and/or Plaintiff’s counsel was not available on the noticed inspection date and stated “Please meet and confer with Plaintiff’s counsel for a mutually-agreeable date.” (See Chang Decl., ¶ 5; Exhibit B.)

In response to Plaintiff’s refusal to produce the subject vehicle for an inspection, Defendant’s counsel tried to meet and confer with Plaintiff's counsel to reschedule the inspection on a mutually convenient date. These efforts did not result in an inspection.

Parties attempted to meet and confer on two separate occasions, but no alternative dates were provides by Plaintiff’s counsel. (Chang Decl., ¶¶ 6-7; Exhibits C and D.)

On June 28, 2023, Defendant served Plaintiff with an Amended Demand for Vehicle Inspection for an inspection date of August 10, 2023. (See Chang Decl., ¶ 8; Exhibit E.)

On July 31, 2023, Plaintiff’s counsel served objections to Defendant’s Amended Demand for Vehicle Inspection and once again refused to produce the subject vehicle for an inspection on the grounds that Plaintiff and/or Plaintiff’s counsel was not available on the noticed inspection date and “Please meet and confer with Plaintiff’s counsel for a mutually-agreeable date.” (See Chang Decl., ¶ 9; Exhibit F.) A fourth meet and confer was attempted.

On September 15, 2023, Defendant served Plaintiff with a Second Amended Demand for Vehicle Inspection for an inspection date of October 12, 2023. (See Chang Decl., ¶ 12; Exhibit J.)

On October 9, 2023, Plaintiff’s counsel, again served objections to Defendant’s Second Amended Demand for Vehicle Inspection, and persisted in refusing to produce the subject vehicle for an inspection on the same grounds that Plaintiff and/or Plaintiff’s counsel was not available on the noticed inspection date and “Please meet and confer with Plaintiff’s counsel for a mutually-agreeable date.” (See Chang Decl., ¶ 13; Exhibit K.) However, despite Defendant’s many attempts to meet and confer with Plaintiff’s counsel, Plaintiff simply refused to provide any available dates for Defendant to inspect Plaintiff’s vehicle.

Legal Standard

Any party may obtain discovery by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, of control of any other party to the action. (Code Civ. Proc., § 2031.010, subd. (a).) 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. (Code Civ. Proc., § 2031.010, subd. (c).) A party may demand that any other party allow the party making the demand, or someone acting on the demanding party’s behalf, to enter onto any land or other property that is in the possession, custody, or control of the party on whom the demand is made, and to inspect and to measure, survey, photograph, test, or sample the land or other property, or any designated object or operation on it. (Code Civ. Proc., § 2031.010, subd. (d).)

The party to whom a demand has been directed, and any other party or affected person, may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2031.060, subd. (a).) The party to whom a demand for inspection has been directed shall respond separately to each item or category of item with: (1) a statement that the party will comply with the particular demand for inspection; (2) a representation that the party lacks the ability to comply with the demand for inspection; or (3) an objection to the particular demand for inspection. (Code Civ. Proc., § 2031.210, subd. (a).)

Discussion

Here, Defendant argues that Plaintiff has been presented with multiple opportunities to provide alternate dates for the vehicle inspection, Plaintiff and Plaintiff’s counsel have failed and refused to do so. Defendant contends that it is unacceptable that it is unable to secure Plaintiff’s compliance to produce the vehicle for an inspection. Defendant maintains Plaintiff cannot prevent defendants from obtaining inspection of the vehicle, which is the basis of Plaintiff's own claims.

In Opposition, Plaintiff’s counsel David Derderian states he did not become aware of the parties’ prior meet and confer efforts until November 2023 because Defendant had sent the demands to the previous handling attorneys. Once he became aware of Defendant’s demands, Counsel Derderian reached out to Defendant’s Counsel and the parties eventually agreed to a Vehicle Inspection date on January 26, 2024. Plaintiff argues that Defendant’s Motion to Compel is now moot.

In reply, Defendant argues that the motion is still necessary to ensure Plaintiff’s appearance at the demanded inspection. The court agrees. The record establishes that from December 2022 to January 2024, Plaintiff repeatedly failed to produce the Subject Vehicle for inspection. The discovery cut-off date is February 20, 2024, and Defendant is entitled to discovery of the Subject Vehicle.

Accordingly, Defendant’s motion for inspection of the Subject Vehicle is GRANTED and inspection is to occur no later than February 20, 2024.

Sanctions

“If a party to whom¿a¿demand¿for inspection, copying, testing, or sampling¿is directed fails to serve a timely response to it, . . . the court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to¿a¿demand¿for inspection, copying, testing, or sampling, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2031.300(c).)

Defendant’s request for monetary sanctions is GRANTED. The Court imposes monetary sanctions against Plaintiff and Plaintiff’s Counsel, jointly and severally, in the reasonable amount of $1,402.20 (calculated as 2.7 hours preparing the instant motion, anticipated 2.0 hours reviewing Plaintiff’s opposition, preparing Defendant’s reply, and attending the hearing at a rate of $285.00, plus the $60.00 filing fees), pursuant to Code of Civil Procedure, section 2031.300, subdivision (c). The Court notes that it is the responsibility of counsel within the same firm to ensure that communications are shared and that new handling attorneys are brought up to date on matters relating to the litigation. Moreover, it is the responsibility of a new handling attorney to communicate with opposing counsel so that correspondence can be sent to the new handling attorney.