Judge: Monica Bachner, Case: 21STCV23872, Date: 2023-02-27 Tentative Ruling

Case Number: 21STCV23872    Hearing Date: February 27, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant Jaguar Land Rover North America, LLC’s motion to compel compliance with October 12, 2022 order to compel vehicle inspection is denied as moot.  The requests for issue sanctions and monetary sanctions are granted.  Plaintiffs are ordered to pay $2,268.75 to Defendant within 15 days.

          Defendant Jaguar Land Rover North America, LLC (“Defendant”) moves for an Order compelling Plaintiffs Thomas and Ilana Jones (collectively, “Plaintiffs”) to produce the Subject Vehicle for expert inspection, in compliance with the Court’s previous October 12, 2022 Order. 

          Background

          The present action arises from Plaintiffs’ lease of a new 2019 Land Rover RR SPT HSE MHEV (hereinafter, “Subject Vehicle”) on approximately August 17, 2019.  In conjunction with the lease of the Subject Vehicle, Defendant issued certain express warranties, wherein Defendant agreed to preserve and maintain the utility and performance of the Subject Vehicle, or provide compensation if there was a failure in such utility or performance of the Subject Vehicle.  The Subject Vehicle purportedly was delivered to Plaintiffs with serious defects, including, but not limited to, defects to the electrical, engine, transmission, and structural system of the Subject Vehicle.  Defendant allegedly breached the aforementioned express warranties by failing to repair or replace the Subject Vehicle following notice of the defects.

          On June 28, 2021, Plaintiffs commenced the instant action by filing a Complaint against Defendant, which alleged the following causes of action: (1) Violation of Song-Beverly Act—Breach of Express Warranty; (2) Violation of Song-Beverly Act—Breach of Implied Warranty; and (3) Violation of the Song-Beverly Act Section 1793.2.  On September 28, 2022, the parties participated in an informal discovery conference and Plaintiff agreed to produce the vehicle for inspection.  (September 28, 2022 Minute Order.)  Thereafter, on October 11, 2022, Defendant filed an Ex Parte Application For an Order Setting Expert Inspection of Subject Vehicle and Deposition of Plaintiff Ilana Jones.      On October 12, 2022, Defendant’s Ex Parte Application came before the Court for hearing.  The Court granted Defendant’s Ex Parte Application, stating “[t]he vehicle is to be produced for inspection no later than 11/01/2022.”  (October 12, 2022 Minute Order.)

          On November 16, 2022, Defendant filed the present Motion to Compel Compliance with October 12, 2022 Order to Compel Vehicle Inspection and Request for Monetary and Issue Sanctions.  Subsequently, on February 10, 2023, Plaintiffs filed an Opposition to Defendant’s Motion.  Defendant late filed its reply on February 23, 2023.  The Court in its discretion choses to consider the reply.

          Motion to Compel Compliance with Court Order

          Defendant presently moves for an Order compelling Plaintiffs to produce the Subject Vehicle for expert inspection, in compliance with the Court’s previous October 12, 2022 Order, pursuant to Code of Civil Procedure section 128, subdivision (a)(4), on the ground Plaintiffs have failed to produce the Subject Vehicle as instructed by the Court on November 1, 2022.  (Mot., at p. 1:25-2:10.)

Code of Civil Procedure section 128, subdivision (a) provides all courts of this state certain general powers, several of which parallel the inherent powers possessed by the courts.  (Code Civ. Proc., § 128, subd. (a); see 16 Cal.Jur.3d (2022) Courts, § 28.)  One such power afforded to all courts within Code of Civil Procedure section 128 is the court’s power “[t]o compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein.”  (Code Civ. Proc., §¿128, subd. (a)(4).)

Considering the representations made within the moving and opposing papers, Defendant’s Motion to Compel Inspection is now moot; however, the request for monetary and issue sanctions is not moot.   Plaintiffs assert, without evidentiary support, that the Subject Vehicle was returned to Defendant on approximately October 17, 2022.  (Mot., at p. 2:7-15 [“Plaintiffs and their counsel fully intended to comply with the Court’s October 12, 2022 Order compelling the Subject Vehicle’s inspection.  However, outside the presence or instruction of counsel, Plaintiffs returned the Subject Vehicle to Jaguar Land Rover North America, LLC on October 17, 2022.  Plaintiff’s counsel was unaware of his development while continuing to meet and confer with Defendant on a mutually agreeable date to attend a legal inspection.  Defendant cannot claim this action impedes its ability to inspect the Subject Vehicle; to the contrary, Defendant is now in sole possession of the Subject Vehicle.  This is a common occurrence in Song-Beverly actions, where a plaintiff’s lease ends mid-way through the litigation process prior to the vehicle inspection taking place.”].) 

However, Plaintiff presents no evidence that the vehicle was returned to Defendant.  Rather apparently the vehicle was returned to a third-party dealership.  (Reynolds Decl., ¶¶ 5-7.)   An order compelling Plaintiff’s production of the Subject Vehicle is no longer possible, thus this portion of the motion is moot.

Alternatively, Defendant seeks monetary and issue sanctions. 

C.C.P. 2031.310(i) provides that, “[i]f a party fails to obey an order compelling further response [to a request for production], the court may make those orders that are just, including the imposition of an issue sanction…”

The Court, after notice to any affected party and after opportunity for hearing, may impose an issue sanction for misuses of the discovery process by either ordering that designated facts shall be taken as established in accordance with the claim of the adversely affected party, or by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.  (C.C.P. §2023.030(b).)  Misuses of the discovery process include failing to respond or to submit to an authorized method of discovery and disobeying a court order to provide discovery.  (C.C.P. §§2023.010(d) and (g).) 

Destruction of evidence in response to, or in anticipation of, a discovery request is a misuse of the discovery process.  (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12.)   

Here, Plaintiffs have disobeyed the Court’s order after the informal discovery conference, and after the Court’s order at the ex parte hearing.  This failure has prevented Defendant from inspecting the vehicle, and presenting evidence whether the vehicle has an unrepaired defect, whether the vehicle has after-market components or other modifications or damage that might influence or affect its operation, use, value or safety, or contribute to a defect.

Defendants are entitled to the following  issue sanctions:

1. A jury instruction as follows: Any defect in the subject vehicle had been repaired as of the date the vehicle was presented to and released by a JLRNA-authorized repair facility for that issue.

2. A jury instruction as follows: No defect has substantially impaired the subject vehicle’s use, value or safety to any reasonable person in Plaintiffs’ position.

In the alternative and in addition, Defendant seeks monetary sanctions.  The Court finds the return of the vehicle preventing an inspection after court order warrants an award of monetary sanctions for the reasonable attorneys’ fees incurred in bringing this motion.  Defendant presented evidence that counsel spent 5.25 hours to prepare the Motion, and expected to spend another 3 hours to prepare the reply and attend the hearing, at the very reasonable fee of $275 per hour, which totals $2,268.75. (Dorenkamp Decl., ¶ 4.)  Plaintiffs’ misuse of discovery warranted the instant motion, and accordingly, Plaintiffs are ordered to pay Defendant’s fees incurred in bringing this motion. Plaintiffs are ordered to pay $2,268.75 to Defendant within 15 days. 

Based on the foregoing, Defendant’s motion to compel compliance with October 12, 2022 order to compel vehicle inspection is denied and the  request for monetary and issue sanctions is granted.

Dated:  February 27, 2023

Hon. Monica Bachner

Judge of the Superior Court