Judge: Teresa A. Beaudet, Case: 23STCV13886, Date: 2024-09-20 Tentative Ruling

Case Number: 23STCV13886    Hearing Date: September 20, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Francisco Javier Nunez (“Plaintiff”) filed this action on June 15, 2023 against Defendant Volkswagen Group of America, Inc. (“Defendant”). The Complaint alleges causes of action for (1) violation of subdivision (d) of Civil Code section 1793.2, (2) violation of subdivision (b) of Civil Code section 1793.2, (3) violation of subdivision (a)(3) of Civil Code section 1793.2, (4) breach of express written warranty, and (5) breach of the implied warranty of merchantability.

In the Complaint, Plaintiff alleges, inter alia, that on or about January 15, 2023, Plaintiff purchased a 2023 Volkswagen Atlas (the “Vehicle”). (Compl., ¶ 5.) Plaintiff alleges that “[d]uring the warranty period, the Vehicle contained or developed defects, including, but not limited to the following: a. Defective body system; b. Defective powertrain system; c. Defective safety system; d. Defective electrical system; e. Defective braking system; f. Defective noise system; and g. Any additional complaints made by Plaintiff, whether or not they are contained in the records or on any repair orders.” (Compl., ¶ 11.) Plaintiff alleges that “Defendant VWGOA was unable and/or failed to service or repair the Vehicle within a reasonable number of attempts.” (Compl., ¶ 14.)

            On September 5, 2023, Plaintiff served his Requests for Production of Documents, Set One on Defendant. (Sue Decl., ¶ 12, Ex. 2.) On October 9, 2023, Defendant served its response to Plaintiff’s Requests for Production of Documents, Set One. (Sue Decl., ¶ 13, Ex. 3.) Plaintiff’s counsel states that Defendant’s response “did not come with verifications or document production.” (Sue Decl., ¶ 13.) Plaintiff’s counsel attempted to meet and confer with Defendant’s counsel regarding the asserted deficiencies in Defendant’s response. (Sue Decl., ¶¶ 16-17.)

            On December 18, 2023, Defendant served a further verified response to Plaintiff’s Requests for Production, Set One. (Sue Decl., ¶ 18, Ex. 8.) Defendant also served its initial document production. (Sue Decl., ¶ 18.) Plaintiff’s counsel states that “[o]n February 1, 2024, having received no responses to its meet and confer attempts, Plaintiff sent Defendant’s counsel an email proposing more time to meet and confer regarding Plaintiff’s discovery disputes.” (Sue Decl., ¶ 19.) Plaintiff’s counsel also states that “[a]dditionally, Plaintiff sent a third meet and confer letter, offering [sic], inter alia, an extension to Plaintiff’s written discovery motion deadline, and to schedule an informal discovery conference (IDC) with Defendant.” (Sue Decl., ¶ 20.) Plaintiff’s counsel states that “[a]s of time of filing, no response was received by Defendant.” (Sue Decl., ¶ 21.)

            On August 12, 2024, the parties participated in an Informal Discovery Conference (“IDC”). The Court’s August 12, 2024 minute order provides, inter alia, that “[t]he matter is called for hearing[.] The Informal Discovery Conference is held. Parties have fulfilled their IDC requirement.”[1]

            Plaintiff now moves for “an order to strike [Defendant’s] meritless objections and compel further responses to Plaintiff’s Request for Production of Documents, Set One Nos. 16­-21.” Defendant opposes.

Legal Standard 

Pursuant to Code of Civil Procedure section 2031.310, subdivision (a), “[o]n receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without merit or too general.”

“The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand,” and “[t]he motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2031.310, subds. (b)(1)-(2).)

Discussion  

A.    Procedural Arguments

As an initial matter, in the opposition, Defendant asserts that Plaintiff failed to participate in an IDC prior to filing the instant motion. The instant motion was filed on February 20, 2024. However, Defendant acknowledges that thereafter, the parties participated in an IDC on August 12, 2024. (Opp’n at p. 3:17.) Defendant asserts that the August 12, 2024 IDC was “interrupted by an earthquake.” (Opp’n at p. 3:18-19.) The Court notes that Defendant does not appear to provide any evidence to support this assertion. In addition, as discussed, the Court’s August 12, 2024 minute order provides that “[t]he matter is called for hearing[.] The Informal Discovery Conference is held. Parties have fulfilled their IDC requirement.” Defendant does not appear to address the Court’s August 12, 2024 minute order.

Defendant also asserts that “Plaintiff failed to file…this motion in accordance with California Code of Civil Procedure section 2031.310(c).” (Opp’n at p. 3:21-22.) Defendant asserts that the motion should be “denied on this basis alone.” (Opp’n at p. 4:6.) Pursuant to Code of Civil Procedure section 2031.310, subdivision (c), “[u]nless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.” In addition, “[a]ny period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days…” (Code Civ. Proc., § 1010.6, subd. (a)(3)(B).)

As discussed, Plaintiff indicates that on December 18, 2023, Defendant served a further verified response to Plaintiff’s Requests for Production, Set One. (Sue Decl., ¶ 18, Ex. 8.)[2] The proof of service attached to Defendant’s further response indicates that such response was served by electronic service. (Sue Decl., ¶ 18, Ex. 8.) Defendant asserts that accordingly, Plaintiff’s deadline to file the instant motion was February 5, 2024. The Court notes that 45 days after December 18, 2023 is February 1, 2024. In addition, 2 court days after February 1, 2024 is February 5, 2024.

As Defendant acknowledges, the Declaration of Jonathan Sue and the separate statement in support of Plaintiff’s motion were filed on February 5, 2024. The proofs of service attached to these documents indicate that they were served on February 5, 2024. However, as Defendant notes, Plaintiff’s notice of motion and the memorandum of points and authorities in support of the motion were not filed until February 20, 2024. The proof of service attached to Plaintiff’s notice of motion and motion indicates that such documents were served on February 20, 2024 by electronic mail. As discussed, “[u]nless notice of [the] motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.” (Code Civ. Proc., § 2031.310, subd. (c).)

Plaintiff did not file any reply in support of the instant motion, and thus does not address the foregoing. In addition, Plaintiff does not appear to provide any evidence that Defendant agreed to extend Plaintiff’s deadline to file a motion to compel. Rather, Plaintiff’s counsel indicates that on February 1, 2024, he sent a letter to Defendant’s counsel indicating, inter alia, that “I also ask that Defendant agree to an extension of Plaintiff’s motion deadline to the IDC date.” (Sue Decl., ¶ 20, Ex. 11.) Plaintiff’s counsel states that “[a]s of time of filing, no response was received by Defendant.” (Sue Decl., ¶ 21.)

Based on the foregoing, the Court denies Plaintiff’s motion as untimely.

Conclusion 

Based on the foregoing, Plaintiff’s motion is denied.

Defendant is ordered to give notice of this ruling.¿¿

DATED:  September 20, 2024                       ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court