Judge: Michael Shultz, Case: 22CCMCV00598, Date: 2023-11-16 Tentative Ruling
Case Number: 22CCMCV00598 Hearing Date: November 16, 2023 Dept: A
22CCMCV00598
Lourdes Avalos Paz, et al v. Kia America, Inc.
Thursday,
November 16, 2023; 8:30 a.m.
[TENTATIVE] ORDER
I.
BACKGROUND
The
complaint alleges that Defendant issued a written express warranty in
connection with Plaintiffs’ lease of a 2022 Kia Nero-EV. The vehicle developed
electrical and other defects. Defendant failed to comply with its statutory
obligations to replace the vehicle or pay restitution after failing to repair
the defects, all in violation of the Song-Beverly Consumer Warranty Act
(“SBA”).
II.
ARGUMENTS
On March
23, 2023, Plaintiffs served a document request on Defendant. Defendant served
unverified, incomplete, and deficient responses on May 24, 2022. Plaintiffs'
counsel sent numerous letters and emails to Defendant to informally resolve the
issues and for Defendant to provide verified, supplemental responses. Defense
counsel said he was “working on it.” Defendant never responded to Plaintiff’s
request for an Informal Discovery Conference with the Court. Defendant produced
documents that had previously been produced.
In
opposition, Defendant contends the requests are non-specific, vague, overbroad,
unduly burdensome, seeks irrelevant information, and confidential, personal
identifying information. The requests are not relevant to Plaintiffs’ claims
for a civil penalty. Defendant produced relevant documents.
In
reply, Plaintiffs contend that the opposition is without merit. Defendant
cannot arbitrarily dictate the scope of permissible discovery. The requests are
narrowly tailored.
III.
LEGAL STANDARDS
A
motion to compel further responses to a document request is proper where the
moving party believes the statement of compliance is incomplete, or a
representation of inability to comply is inadequate, evasive and/or an
objection is without merit or too general. (Code
Civ. Proc., § 2031.310 (a).) The motion must show good cause to justify the
discovery and must be supported by a meet and confer declaration. (Id.
at subd. (b).
The
scope of discovery is liberally construed in favor of disclosure “as a matter
of right unless statutory or public policy considerations clearly prohibit it.”
(Greyhound
Corp. v. Superior Court of Merced County (1961) 56 Cal. 2d 355,
377-378.) The broad scope of permissible discovery includes “any matter, not
privileged, that is relevant to the subject matter involved in the pending
action or to the determination of any motion made in that action, if the matter
either is itself admissible in evidence or appears reasonably calculated to
lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.)
IV.
DISCUSSION
Defendant
has not complied with its obligations to meet and confer which is an abuse of
the discovery process. (Code
Civ. Proc., § 2023.010 (i).) Plaintiffs' counsel sent a seven-page meet and
confer letter to defense counsel on July 21, 2023. (Supplemental Decl. .pdf p.
176.) After no response from Defendant,
Plaintiffs sent a second letter on August 11, 2023. (Id. .pdf
p. 180.) Plaintiffs' counsel sent follow-up emails on August 17, 21, 24,
2023, in which Plaintiffs’ counsel inquired about the verification, supplement
responses, requested an IDC, and agreed to provide a signed protective order. (Id.
.pdf p. 182-188). Mr. Pratty, for Defendant, informed that he was in trial, but
his staff was working on the documents, which he “hoped to have those for [Plaintiffs]
shortly.” (Id., p. 184.)
On
September 17, 2023, Plaintiffs' counsel sent another lengthy meet and confer
letter and a follow-up letter on September 26, 2023, after Mr. Pratty failed to
respond. (Id. p. 193-204). Defendant sent an email
representing that the documents were produced in September 2023. (Id.
p. 205.)
A
meaningful, reasonable, sincere, and good faith attempt to meet and confer
requires that the parties present their respective positions with “candor,
specificity, and support” during informal negotiations. (Townsend
v. Superior Court (1998) 61 Cal.App.4th 1431, 1435.) The
Discovery Act is meant to be “self-executing.” (Townsend
v. Superior Court (1998) 61 Cal.App.4th 1431, 1435.)
Defendant
raises nine categories and subcategories in opposition, none of which were
presented to Plaintiffs in the handful of emails sent by Defendant in response
to Plaintiffs’ considerable efforts to meet and confer. Defendant’s failure to
respond in good faith results in the improper and unnecessary use of the
Court’s time to assist the parties in resolving differences for the first time
at the hearing.
The
document request propounded by Plaintiffs is discoverable. The requests cover two
general categories: (1) documents relating to Defendant’s knowledge of the
issues plaguing the subject vehicle; and (2) documents relating to the same
issues of in vehicles of the same, year, make, and model.
A.
Defendant’s responses are not
Code-complaint.
The
response must be verified, which Defendant has not addressed. Defendant
provided a blank sheet entitled “Verification to Follow.” (Supp. Decl. of
Pouyan Bohloul, .pdf. p 159.) Where Defendant contends that it is unable to
produce documents, Defendant must explain its inability to comply, affirm
that a diligent search and a reasonable inquiry has been made in an effort to
comply with that demand, specify whether the inability to comply is because the
particular item or category has “never existed, has been destroyed, has been
lost, misplaced, or stolen, or has never been, or is no longer, in the
possession, custody, or control of the responding party.” (Code Civ. Proc., §
2031.230.)
Defendant
is required to identify the name and address of any natural person or
organization known to have possession, custody, or control of that item or
category of item. (Id.)
Stating that “Kia Motors Corporation has the documents” is insufficient
standing alone. Further this statement is made by defense counsel who has not
shown any personal knowledge of which KIA entity distributes vehicles and which
entity manufactures vehicles, and who has access to safety bulletins and other
requested documents. (Decl. of Pratty, ¶¶ 4-6).
Defendant’s
belief that the material is protected from disclosure does not justify refusing
to identify and produce documents. Where documents are withheld pursuant to privacy,
confidentiality, trade secret, attorney-client privilege, work product, or any
other privilege, Defendant is required to provide a privilege log of all
documents withheld and the specific objection asserted to enable the Court to
determine whether any privilege applies. (Code Civ. Proc., § 2031.240 subd.
(b).) The privilege log must contain clear descriptions of the documents as set
forth in the statute. (Id.) Therefore, Defendant’s claim that it
produced 966 pages of “non-confidential documents” is improper. (Decl. of
Pratty, ¶ 4.) Defendant must seek a protective order; not unilaterally withhold
unidentified documents at its discretion.
The
discovery sought is relevant to issues raised in cases for violation of the SBA.
To prevail, Plaintiff has the burden of proving that “(1) the vehicle
had a nonconformity covered by the express warranty that substantially impaired
the use, value or safety of the vehicle (the nonconformity element); (2) the
vehicle was presented to an authorized representative of the manufacturer of
the vehicle for repair (the presentation element); and (3) the manufacturer or
his representative did not repair the nonconformity after a reasonable number
of repair attempts (the failure to repair element). " Oregel v.
American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101.
The
extent of Defendant’s knowledge of the defect and attempts to repair are relevant
to Plaintiff’s case in chief including whether Defendant attempted to comply
with their obligations under the SBA. (Oregel
v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101.) The
requested documents are also relevant to the recovery of civil penalties if the
buyer can show that “the manufacturer's failure to comply was
willful. The penalty is important ‘as a deterrent to deliberate violations.
Without such a provision, a seller or manufacturer who knew the consumer was
entitled to a refund or replacement might nevertheless be tempted to refuse
compliance in the hope the consumer would not persist, secure in the knowledge
its liability was limited to refund or replacement.’” (Jensen
v. BMW of North America, Inc. (1995) 35
Cal.App.4th 112, 136.) To establish this violation, the jury can consider
whether “(1) the manufacturer knew the vehicle had not been repaired within a
reasonable period or after a reasonable number of attempts, and (2) whether the
manufacturer had a written policy on the requirement to repair or replace. (Id.)
Plaintiffs
are entitled to discover information of the same defects in vehicles of the
same year, make, and model other than Plaintiffs’ vehicle as it is relevant to civil
penalties. (Donlen
v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 154; Jensen
v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 136.)
Defendant
has not established that compliance with the document request will be
unreasonably burdensome and oppressive. Defendant’s remedy is to
move for a protective order, not refuse to respond or unilaterally impose
limitations on Plaintiffs’ discovery. Defendant did not meet its burden of
proof on that issue. (West
Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417.) The
only evidence provided is defense counsel’s declaration, who does not attest to
the number of hours required to obtain and produce the documents.
To the
extent that Defendant refers Plaintiffs to documents previously produced, the
response is improper. Plaintiffs are entitled
to a complete response in the form required by statute. It is not proper to
answer “by stating, ‘see my deposition,’ ‘see my pleading,’ ‘see the financial
statement,” or sending an email that states documents were produced in
September without an accompanying verified supplemental response. (Supp. Decl.,
page 205). If a question does require the responding party to refer to a
pleading or document, the pleading or document should be identified and
summarized so the answer is fully responsive to the question.” (Deyo
v. Kilbourne, (1978) 84 Cal. App. 3d 771, 783-784.)
V.
CONCLUSION
Based
on the foregoing, Plaintiffs’ motion is GRANTED. Defendant is ordered to
provide a verified, further response to Request for Production of Documents,
Set One without objection to Requests Nos. 18, 29, 51-54, 58, 59 and 7-9,
12-13, 15-17, 19-23, 25, 40, 42-43, 50, 55. Plaintiffs have not requested
imposition of sanctions, therefore, none is imposed although Defendant failed
to meet and good faith and failed to show substantial justification for opposing
the motion, both of which constitute abuse of the discovery process. (Code Civ.
Proc., § 2023.010.) The parties are admonished to comply with their respective
obligations under the Discovery Act, including the requirement to meet and
confer prior to making discovery motions.