Judge Ralph C. Hofer, Case Number: 22GDCV00670, Date: 2024-05-17 Tentative Ruling

Order compelling defendant FCA USA, LLC to comply with its agreement and this court’s Standing Order regarding Discovery in Song-Beverly Litigation and to produce documents responsive to the order.

Plaintiff seeks an order compelling defendant FCA US LLC to serve verified responses and produce documents pursuant to the agreement of the parties to fully comply with this court’s Standing Order Re Discovery (Song-Beverly Litigation) (Order) applicable to Song-Beverly Litigation, posted and available on the Los Angeles Superior Court website in connection with Department D, Glendale Courthouse. An Order was originally signed by the court on January 24, 2023, and revised and again signed on January 11, 2024.

Defendant FCA has filed opposition to plaintiff’s motion, indicating that despite an inadvertent delay, a response to plaintiff’s initial set of discovery was properly served on March 8, 2024, and that verifications and initial document production was served on March 18, 2024. [Van Dao Decl., paras. 5, 6, Exs. B, C].

The parties are also directed to the Notice to All Counsel Re: Lemon Law Cases for Department D, entitled Customary Rulings Re Document Requests (Song Beverly Litigation) (Notice). That Notice sets forth the categories of documents which the court usually will order be provided when the court faces a discovery dispute in a Song-Beverly case. The parties are also expected to conduct discovery in accordance with the Notice.

If plaintiff is not satisfied with the current responses or production, plaintiff must bring a motion to compel further responses, after the parties have engaged in good faith meet and confer concerning the any outstanding discovery in light of the Order and Notice, and, if necessary, file a new motion with a Code-compliant separate statement reflecting the then current status of the discovery dispute, including in that separate statement as to each request and response any applicable language of the Order and/or Notice.

With respect to document demands, under CCP section 2031.300(c), “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…”

CCP § 2023.010 provides that misuse of the discovery process includes “(d) Failing to respond or to submit to an authorized method of discovery.” Where there has been misuse of the discovery process, under CCP § 2023.030(a), the court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

In this case, defendant failed to timely respond to an authorized method of discovery, failed to respond to repeated attempts by plaintiff to gain access to a purported document production, and numerous attempts by plaintiff to resolve the issues without the need for a discovery motion, with a trial date looming on June 17, 2024. [Schwartz Decl., paras. 5-21, Exs. 3-8]. Evidently, this motion was necessary to draw defendant’s counsel’s attention to this matter and finally produce verifications and document production.

Defendant FCA in opposition states that FCA admits that it was inadvertently delayed in serving responses to the propounded discovery but argues that responses were ultimately served and complied with the requirements governing the form and completeness of discovery responses. Defendant argues that the delay in serving the responses was a result of mistake, inadvertence, and excusable neglect.

Specifically, defendant argues that defense counsel had believed that discovery responses and document production were served in May of 2023, and that it was not until plaintiff’s counsel reached out for the first time on March 6, 2024 that counsel discovered the error, and immediately after learning of the error defense counsel provided responses, verification and document production. [Van Dao Decl., para. 7].

This explanation does not explain why counsel did not respond to the numerous attempts to obtain discovery prior to March 6, 2024, or the failure to respond to the meet and confer efforts pointing out the deficiencies in the March 8, 2024 unverified responses, until after this motion was filed on March 15, 2024. [Schwartz Decl., paras. 10-19; Exs. 4-8]. The opposition shows that the March 8, 2024 discovery responses admittedly were not verified. [Van Dao Decl., Ex. A]. The March 18, 2024 responses were evidently served by mail on March 15, 2024, which is curious, since the production required an electronic link. [Van Dao Decl., Ex. C]. The opposition concedes that the responses were not properly served until March 18, 2024, after the filing of this motion. Hence, defense counsel was substantially justified in disregarding multiple attempts to resolve the matter without resort to court intervention.

The opposition also argues that no party will be prejudiced, since the discovery has now been provided. This argument does not take into account that it was evidently necessary for plaintiff to incur the expense of making the motion in order to obtain the discovery, which expense is fairly shifted to defendant under the circumstances.

Defendant has failed to establish that circumstances would make the shifting of the cost to bring the motion to defendant, the party whose conduct necessitated the motion, unjust for this purpose. Monetary sanctions are awarded.

The sanctions sought are $3,210.00. These appear reasonable. The attorney declaration in support includes information justifying the billing rate of $450 per hour. Defendant in the opposition does not challenge the reasonableness of any aspect of the monetary sanctions sought. The sanctions sought accordingly are awarded in full as requested.

Plaintiff’s Motion to Compel Compliance with Department D’s Standing Order Re Discovery in Song-Beverly Litigation is MOOT in light of the service of verified responses and further production of documents prior to the hearing.

Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $3,150.00 (7.0 hours @ $450/hour) [7 hours requested] plus $60 filing fee [Amount Requested $3,210.00], which sum is to be awarded in favor of plaintiff Armen Bazikyan and against defendant FCA USA LLC, and defendant’s attorney of record, jointly and severally, payable within 30 days. CCP §§ 2030.300(c), § 2023.010 (d), and 2023.030(a); CRC Rule 3.1030(a).

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