Judge: Michael E. Whitaker, Case: 19STCV07360, Date: 2022-10-28 Tentative Ruling

Case Number: 19STCV07360    Hearing Date: October 28, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion and Motion to Compel Compliance with Plaintiff’s Request for a Vehicle Inspection and Request for Sanctions; Declaration of Boris Koron

OPPOSITION PAPERS:

1. Opposition to Motion to Compel Compliance with Plaintiff’s Request for a Vehicle Inspection and Request for Sanctions; Request for Sanctions; Declaration of Carmen R. Selame

REPLY PAPERS:

1. Reply to Opposition to Motion to Compel Compliance with Plaintiff’s Request for a Vehicle Inspection and Request for Sanctions

BACKGROUND

This is a personal injury action arising out of a motor vehicle accident between Dana Peters (Plaintiff) and Michael James Way (Defendant) in the Sherman Oaks neighborhood of Los Angeles, CA on March 6, 2017.  Plaintiff’s complaint was filed on March 4, 2019 alleging causes of action for (1) motor vehicle and (2) general negligence.  The parties dispute the causation of the accident, liability arising therefrom, and Plaintiff’s medical treatment.

LEGAL STANDARD

Compel Vehicle Inspection

Code of Civil Procedure section 2031.010, subdivision (c), states, “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 of Civil Procedure section 2031.010, subdivision (e), states, “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, copy, test, or sample electronically stored information in the possession, custody, or control of the party on whom demand is made.”

Sanctions

Code of Civil Procedure section 2023.010 states that the following are misuses of the discovery process: “(e) Making, without substantial justification, an unmeritorious objection to discovery; (f) Making an evasive response to discovery; and (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.

It is a commonly stated axiom that discovery sanctions “should be appropriate to the dereliction and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.”  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793, superseded by statute on another ground as stated in Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438, 444.)  Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting for the lack of information.  (Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th 1161, 1183.)

Courts must consider both the conduct being sanctioned and its effect on the party seeking discovery and, in choosing a sanction, should try to tailor the sanction to the harm caused by the withheld discovery.  (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)

DISCUSSION

Plaintiff’s Motion to Compel Vehicle Inspection

Here, inspection of Defendant’s vehicle is likely to produce admissible evidence.  According to Plaintiff, “This data includes the steering wheel direction, braking and acceleration, position of the vehicles, and speed of the vehicle as well as any other data that may have occurred immediately before the crash.  These pieces of information will help determine the sequence of events to help explain why the crash occurred and the velocity of the impact for damage purposes.”  (Reply, at p. 3.)  Defendant’s vehicle was involved in the motor vehicle accident underlying this action, and information from the inspection may indicate causation, liability, and damages.

Plaintiff requested that Defendant produce his vehicle for inspection on two separate occasions.  But Defendant has not produced his vehicle for inspection for two main reasons: the unavailability of an expert and the failure to meet and confer.

First, Defendant wishes to have his own expert present at the inspection, which Plaintiff deems unreasonable.  On the contrary, it is reasonable for both parties to have an expert for each party present  If the motion to compel inspection of the vehicle is granted, then such inspection should have experts for each party present.

It is not reasonable, however, for Defendant to delay the inspection on the basis of not being able to find an expert in Tennessee who is available on the proposed inspection days.  It is furthermore unreasonable to object to a “unilaterally noticed deposition date set by [P]laintiff’s counsel” without notifying Plaintiff’s counsel with the problem with Plaintiff’s chosen date or proposing an alternative date or timeframe.  (Opposition, pp. 2-3.) 

This leads to the second reason the vehicle has not been produced for inspection, the failure to meet and confer.  Both parties put the blame on one another for the failure to meet and confer to determine alternative dates for the vehicle inspection.  (Motion, pp. 4, 6; Koron Decl., Exh. 9; Opposition, pp. 3-6; Reply, pp. 3-4.)  Plaintiff’s counsel emailed Defendant’s counsel to request to meet and confer.  (Koron Decl., Exh. 9.)  Defendant’s counsel asserts that Plaintiff’s counsel did so when “[P]laintiff’s counsel [was] aware [D]efendant [was] still in the process of locating [sic] and expert.”  (Opposition, p. 5.)  It appears that the email was a good faith effort by Plaintiff to meet and confer, so the failure to meet and confer is not a ground to deny the motion.

Therefore, Plaintiff’s Motion to Compel Compliance with Plaintiff’s Request for a Vehicle Inspection is granted.  Defendant is entitled to have an expert present at the inspection.

Plaintiff’s Motion for Sanctions

Plaintiff moves the court for sanctions against Defendant’s counsel.  It appears Defendant’s counsel made a good faith objection to Plaintiff’s motion to compel the vehicle inspection, which constitutes a substantial justification.  Therefore, it would be inappropriate to issue sanctions against Defendant’s counsel.

Defendant’s Motion for Sanctions

            Defendant moves the court for sanctions against Plaintiff’s counsel.  It appears Plaintiff’s counsel made a good faith effort to meet and confer with Defendant’s counsel.  Therefore, it would be inappropriate to issue sanctions against Plaintiff’s counsel.

CONCLUSION AND ORDER

For the reasons listed above, Plaintiff Dana Peters’ Motion to Compel Compliance with Plaintiff’s Request for a Vehicle Inspection is GRANTED.  Further, the Court orders that the parties meet and confer forthwith regarding the scheduling of the vehicle inspection and orders that the vehicle inspection (which may be attended by experts retained by Plaintiff and Defendant vis-à-vis the vehicle inspection) be completed on or before December 16, 2022. 

Plaintiff Dana Peters’ Request for Sanctions is DENIED.

Defendant Michael James Way’s Request for Sanctions is DENIED.

Plaintiff Dana Peters shall provide notice of the Court’s orders and file a proof of service regarding the same.