Judge Ralph C. Hofer, Case Number: 23GDCV01542, Date: 2024-10-18 Tentative Ruling

DUE TO THE COURT’S SCHEDULING ISSUES, THE CALENDAR WILL START AT 8:30 A.M. AND WILL RECESS AT 9:30 A.M. WHATEVER MATTERS HAVE NOT BEEN CALLED WILL TRAIL TO THE 1:30 P.M.

Plaintiff Marcelle Alvarado alleges that in October of 2019 plaintiff purchased a 2020 Kia Soul, in connection with which defendant Kia America, Inc. (Kia) issued a written warranty, in which defendant Kia undertook to preserve or maintain the utility or performance of the vehicle or provide compensation if there was a failure in such utility or performance.

Plaintiff alleges that the vehicle was delivered to plaintiff with serious defects and nonconformities to warranty and developed other serious defects and nonconformities, including transmission and engine system defects.

Plaintiff alleges that the defects manifested themselves in the vehicle within the applicable warranty period, and substantially impair the use, value, or safety of the vehicle. Plaintiff alleges that plaintiff delivered the vehicle to an authorized repair facility to repair the nonconformities, but defendant has been unable to conform the vehicle to warranty after a reasonable number of repair attempts.

Plaintiff alleges that notwithstanding plaintiff’s entitlement, defendant Kia has failed to either promptly replace the vehicle or to promptly make restitution.

The complaint also alleges that plaintiff delivered the vehicle to defendant Kia Downtown Los Angeles for repairs on numerous occasions, and that defendant Kia Downtown Los Angeles breached its duty to plaintiff to use ordinary care and skill by failing to properly store, prepare, and repair the vehicle in accordance with industry standards.

The complaint alleges three causes of action for Violation of the Song Beverly Act, for breach of express warranty, breach of implied warranty, and violation of Song-Beverly Act section 1793.2(b), as well as a cause of action for negligent repair.

Defendant Kia Motors America, Inc. seeks by this motion to compel plaintiff to permit inspection of the subject vehicle on a date certain.

With respect to a vehicle inspection, under CCP section 2031.010, “[a]ny party may obtain discovery… by inspecting, testing, or sampling…tangible things,…or other property…in the possession, custody or control of any other party to the action.”

Relief is sought under CCP section 2031.310, which provides that a party demanding inspection, testing, or sampling “may move for an order compelling further responses to the demand if the demanding party deems that any of the following apply:

Here, defendant Kia served a Demand for Vehicle Inspection to Plaintiff on April 9, 2024. [Shoemaker Decl., para. 2, Ex. A]. On May 23, 2024, plaintiff served objections to the demand. [Shoemaker Decl., para. 3, Ex. B]. Since then, defense counsel has proposed alternative dates, but plaintiff has not responded to correspondence, or provided alternative inspection dates. [Shoemaker Decl., paras. 4-6, Ex. C].

Defendant has established that plaintiff has failed to produce the vehicle for inspection, and that the vehicle inspection is necessary so that defendant can evaluate this matter and defend the case in a meaningful way. [Shoemaker Decl., para. 7].

Plaintiff in opposition argues that the motion is moot, as plaintiff’s counsel has provided November 6, 2024 as the date for the vehicle inspection to take place.

Specifically, plaintiff submits evidence that since the filing of this motion on August 9, 2024, on October 7, 2024, plaintiff’s counsel contacted defendant’s counsel and indicated that plaintiff and plaintiff’s expert are available for the vehicle inspection on November 6, 2024. [Gopstein Decl. ¶ 10, Ex. 3].

Plaintiff indicates that plaintiff’s counsel has requested that defendant withdraw the instant motion to compel as it is now moot. [Gopstein Decl. ¶ 11].

The motion accordingly appears to be moot in principle, although since the inspection has not yet been conducted, in an abundance of caution, the court orders the vehicle inspection to go forward on the date selected by the parties, at the concession of plaintiff in the opposition. The reply does not appear to object to the November 6, 2024 date, but defendant is understandably concerned that a date was not offered until only a few days before opposition to the motion was due, and such an offer is not sufficient to ensure that plaintiff will actually produce the vehicle for inspection without a court order. The court orders the inspection to proceed on a date certain

The court also notes that this matter remains 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.

“Vehicle Inspection: Within the time limits allowed by law, the subject vehicle may be inspected by the parties at a mutual agreeable time and place. Unless otherwise agreed by the parties, the vehicle inspection (VI) process shall be as follows:

a. Defendant shall show plaintiff’s representative proof of insurance for the person/company who will be road testing the subject vehicle;

b. The defense VI shall commence at 8:00 a.m. at an authorized service and repair facility closest to plaintiff’s residence, and may continue until no later than 5:00 p.m. that same day;

c. Plaintiff shall deliver the vehicle to the noticed place of inspection. If the subject vehicle has a dead battery, plaintiff’s counsel shall notify defendant’s counsel at least one court day before the VI, and the VI shall proceed with defendant paying for the tow or jump start to the place of inspection and taking reasonable steps to retrieve stored diagnostic codes and other onboard data before the battery is recharged or replaced.

d. Defendant shall provide plaintiff’s representative with duplicate copies of all paper and electronic documents created during and because of the VI, such as test results, the stored codes in the vehicle’s internal network or in its control units, alignment sheets, etc.;

e. If the subject vehicle is in then-current use by plaintiff, and if requested within a reasonable time, in writing, prior to the VI, plaintiff shall be provided a loaner or rental vehicle paid for by defendant for the duration of the VI, conditioned on plaintiff providing standard rental car disclosures such as proof of a current driver’s license and insurance coverage, and with plaintiff responsible for the loaner vehicle’s fuel. The loaner vehicle need not be the same model or type as the subject vehicle unless plaintiff agrees to pay for an upgrade;

f. Defendant shall be permitted to run tests of relevant electronic control units (ECUs) and components, conditioned on defendant maintaining, downloading, or printing out stored date on the existing condition or historical information stored in an ECU; and

The parties are ordered to conduct the subject inspection on the agreed upon date, and in full compliance with the Discovery Act and the applicable provisions of the Order.

Sanctions are requested pursuant to CCP section 2031.300, which, under subdivision (c), which provides that 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… unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Sanctions are also sought under CCP § 2023.010, which provides that misuse of the discovery process includes “(d) Failing to respond or to submit to an authorized method of discovery” and “(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery” ….”

Where there has been such conduct, 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....If a monetary sanction is authorized” by the statute, “ the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that the other circumstances make the imposition of the sanction unjust.” CCP §2023.030(a).

The burden is on the party subject to sanctions to show substantial justification or injustice. Mattco Forge, Inc. v. Arthur Young & Co. (1990, 2nd Dist.) 223 Cal.App.3d 1429, 1436.

“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.”

Here, the motion is granted at the concession of plaintiff in the opposition. Hence, sanctions are recoverable despite any offer to provide the subject discovery after this motion was filed and the expenses to prepare it were incurred.

Plaintiff in the opposition argues that sanctions should be denied because the request is procedurally defective. Plaintiff relies on CCP § 2023.040, which requires that

“A request for a sanction shall, in the notice of motion, identify every person, party and attorney against whom the sanction is sought and specify the type of sanction sought. The notice of motion shall be accompanied by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”

Plaintiff argues that defendant failed to identify every person, party, or attorney against whom the sanction is sought. However, the notice of motion seeks “an order requiring Plaintiff or Plaintiff’s attorneys, to pay costs, including reasonable attorney’s fees, in the amount of $1,720.00.” [Notice, p. 1:27-2:3]. This appears sufficient to identify the party or persons against whom sanctions are sought and to reasonably specify the type of sanction sought, for costs and fees, or monetary sanctions.

Plaintiff argues that the declaration fails to set forth facts supporting the amount of monetary sanctions sought. However, the declaration of counsel is quite detailed concerning the time spent at the specified billing rate to pursue this motion. [See Shoemaker Decl., para. 9]. The sanctions are not denied on this ground.

Plaintiff also argues that plaintiff acted with substantial justification, as the “circumstances described above,” would make the imposition of sanctions unjust. It is not clear upon what circumstances plaintiff relies for this argument. Plaintiff has not sufficiently explained why there has been a consistent refusal to provide dates for a vehicle inspection since April of 2024.

It is not established that the imposition of sanctions would be unjust under the circumstances, where it was plaintiff’s conduct that clearly made this motion necessary. It is appropriate to shift to plaintiff the reasonable expense of having brought this motion to procure plaintiff’s compliance with plaintiff’s discovery obligations in this matter. Monetary sanctions accordingly are awarded.

The sanctions sought are $1,720, which seem high for a motion of this nature. The sanctions sought include a request for 4 hours of time at $215 per hour to attend the hearing of this matter, when a remote appearance will be sufficient, and this time is significantly reduced to 1 hour. The sanctions awarded are adjusted accordingly as follows: 5 hours attorney time at $215.00 per hour for a total attorneys’ fees of $1,075.00.

Monetary sanctions sought by moving party are GRANTED: 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 preparing the pending motion is $1075.00 (5 hours @ $215/hour) [8 hours requested] plus $60 in filing fees [Amount Requested $= $1,720.00], which sum is to be awarded in favor of defendant Kia America, Inc. and against plaintiff Marcelle Alvarado, and plaintiff’s attorney of record, jointly and severally, payable within 30 days. CCP §§ 2031.300(c), 2023.010 (d) and (h), 2023.030(a) and CRC Rule 3.1348(a).

Counsel for moving party is ordered to prepare an order for sanctions and submit it on eCourt by noon today in accordance with this order.

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If no appearance is set up through LACourtConnect, or no appearance is otherwise made, then the Court will assume the parties are submitting on the tentative.