TENTATIVE RULING

Calendar: 6

Date: 12/8/2023

Case No: 22 GDCV01056 Trial Date:  Feb. 25, 2025 

Case Name: Estrada v. Kia America, Inc.  

MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS 

Moving Party: Plaintiff Xcaret Estrada  

Responding Party: Defendant Kia America, Inc.  

RELIEF REQUESTED:

Further Responses to First Set of Requests for Production of Documents 

 

FACTUAL BACKGROUND:

Plaintiff Xcaret Estrada alleges that in March of 2022 plaintiff entered into a warranty contract with Kia America, Inc. regarding a 2018 Kia Nero.  Plaintiff alleges that under the Song-Beverly Act, defendant had an affirmative duty to promptly offer to repurchase or replace the vehicle at the time defendant failed to conform the vehicle to the terms of the express warranty after a reasonable number of attempts. 

Plaintiff alleges that defects and nonconformities to warranty manifested themselves within the applicable express warranty period, including transmission and engine issues, which substantially impair the use, value, and/or safety of the vehicle.  Plaintiff delivered the vehicle to the manufacturer’s authorized repair facility for repair of the nonconformities, and defendant has been unable to conform plaintiff’s vehicle to the applicable express warranties after a reasonable number of repair attempts.  The complaint alleges that notwithstanding plaintiff’s entitlement, defendant has failed to either promptly replace the vehicle or to promptly make restitution in accordance with the Song-Beverly Act.  

The complaint alleges two causes of action for Violation of Song-Beverly Consumer Warranty Act, including for breach of express warranty and section 1793.2.  

ANALYSIS:

Defendant in opposition to the motion indicates that prior to the hearing of the motion, defendant on November 21, 2023, served further response to plaintiff’s Requests for Production, Set No. One. 

The further responses are attached to the declaration submitted with the opposition.  [Laughlin Decl., Ex. 4].  The responses refer to a “Confidential Production” served concurrently with the further responses.  [Lauglin Decl., para. 8, Ex. 4].   The confidential production was evidently made in accordance with the Stipulation and Protective Order entered into the parties and signed and filed as the Order of this court on July 28, 2023. [Id., see also, Stipulation and Order, 07/28/2023].  

The further responses render the motion moot.

In addition, the parties are evidently unaware that this matter is subject to the Addendum to Case Management Conference Order (Song-Beverly Litigation) (Order) applicable to Song-Beverly Litigation, now posted and available on the Los Angeles Superior Court website in connection with this Department, Glendale Courthouse, Department D.   The Order was signed by the court on January 24, 2023. 

Pursuant to that Order, “any formal discovery propounded and currently pending or outstanding by a party in this matter prior to the date of this CMC Order is stayed pending further order of the Court.”

[Order section (1)(a)]. 

The order sets forth the following provision concerning discovery in Song-Beverly matters which appear to address the discovery disputes raised by the current motion and opposition. 

“Production of Documents:  Within 60 days of service of this Order both plaintiff and defendant shall provide copies of the following documents, which are in their respective possession, custody and/or control, to the opposing side(s):

a. Purchase or lease contracts concerning the subject vehicle, including any associated documents reflecting OEM or aftermarket equipment installed at the dealership, ELWs or service contracts, and any other writings signed by the plaintiff at the point of sale.

b. Work orders, repair orders, and invoices (including accounting and warranty versions) for any maintenance, service and repair activity concerning the subject vehicles.

c. Rental car or loaner agreements regarding alternative transportation provided during service or repair visits concerning the subject vehicle.

d. Records of communications with dealer personnel, and/or factory representatives and defendant’s call center or customer assistance personnel concerning the subject vehicle.

e. Warrant claims submitted to and/or approved by defendant concerning the subject vehicle.

f. Warranty Policy and Procedure Manual or similar policies or claim-handling procedures published by Defendant from the date the subject vehicle was purchased or leased to the date the lawsuit was filed.

g. Defendant’s written statements of policy and/or procedures used to evaluate customer requests for repurchase or replacement pursuant to “Lemon Law” 

claims, including ones brought under the Song-Beverly Consumer Warranty Act, from the date the subject vehicle was purchased or leased to the date the lawsuit was filed.

h. A list of or compilation of customer complaints in defendant’s electronically stored information database that are substantially similar to the alleged defects claimed by plaintiff, in vehicles purchased in California for the same year, make and model of the subject vehicle.  A substantially similar customer complaint would be the same nature of reported symptom, malfunction, dashboard indicator light, or other manifestation of a repair problem as the description listed in any work order or repair order for the subject vehicle, other than routine or scheduled maintenance items.  The list provided by defendant may be in the chart or spreadsheet format, and shall include the VIN, date of repair visit, dealership or other reporting location, and text of the other customers’ reported complaint, but shall not include the other customers’ names, addresses, phone numbers, e-mail addresses, or other personal identifying information.

i. Technical Service Bulletins and Recall Notices for vehicle purchased or leased in California for the same year, make and model of the subject vehicle.

j. Copies of any repair instruction, bulletin, or other diagnostic/repair procedure identified in any of the repair order/invoice records for the subject vehicle.

k. Receipts or other written evidence supporting any incidental or consequential damages claimed by plaintiff.

If a party believes any of this information should be subject to a protective order, that party shall serve and file a proposed protective order within 5 days of this Order and the parties shall meet and confer as to agreeable language for the same.  The default will be the standard Protective Order provided by the LASC in its website.

The information may be provided to the opposing party in electronic form as a PDF at the option of the producing party.

Plaintiff and defendant shall serve verification with the documents they produce.

Any additional requests for documents may only be propounded by stipulation and/or court order (via motion upon showing of good cause).

[Order section (2)(a)-(k)].

Specifically, with respect to a statement of compliance, CCP section 2031.220 requires:

“A statement that a party to whom an inspection demand has been directed will comply with the particular demand shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being make will be included in the production.”

With respect to a statement of inability to comply, CCP section 2031.230 requires:

“A representation of inability to comply with the particular demand for inspection shall affirm that a diligent search and a reasonably inquiry has been made in an effort to comply with that demand.   This statement shall also 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.   The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”

To the extent responses are made which object that requests seek proprietary, commercially sensitive, or confidential information, or licensed software, the file shows that the parties have since entered into an executed protective order, which has been signed and filed and has become the Order of the court.  [Stipulation and Order, 07/28/2023].   Any further discovery responses should accordingly not include such objections. 

RULING:

Plaintiff’s Motion to Compel Further Discovery Responses to Plaintiff’s First Request for Production of Documents from Defendant is MOOT in light of the service of Further Responses on November 21, 2023. 

The parties are reminded that discovery in this matter is governed by this Court’s Addendum to Case Management Conference Order (Song-Beverly Litigation), signed and entered by the Court on January 24, 2023.  The parties are accordingly expected to meet and confer in good faith concerning compliance with the Order, and to serve any further discovery, and engage in any further discovery proceedings or motions in compliance with the Order, as well as with this minute order. 

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE 

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