Judge Theresa M. Traber, Case 21STCV03021 2023-01-04 Tentative Ruling

Judge: Theresa M. Traber, Case: 21STCV03021, Date: 2023-01-04 Tentative Ruling

Case Number: 21STCV03021 Hearing Date: January 4, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: January 4, 2022 TRIAL DATE: August 22, 2023

CASE: Jacob Aaron Morayniss, et al. v. Volkswagen Group of America, Inc.

CASE NO.: 21STCV03021

MOTION TO COMPEL FURTHER RESPONSES TO DEMAND FOR INSPECTION; REQUEST FOR SANCTIONS

MOVING PARTY: Defendant Volkswagen Group of America, Inc.

RESPONDING PARTY(S): Plaintiffs Jacob Aaron Morayniss and John David Morayniss

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a lemon law action filed on January 15, 2021. Plaintiffs leased a new 2021 Audi RS Q8 Quattro which Plaintiffs allege was delivered with serious defects including engine and electrical system defects.

Defendant moves to compel production of Plaintiffs’ vehicle for inspection under Code of Civil Procedure section 2031.310.

TENTATIVE RULING:

Defendant’s Motion to Compel Further Responses to Demand for Inspection is GRANTED.

Plaintiffs are ordered to produce the Subject Vehicle and all responsive materials on or before May 24, 2023.

Defendant’s request for sanctions is DENIED.

DISCUSSION:

Defendant moves to compel production of Plaintiffs’ vehicle for inspection under Code of Civil Procedure section 2031.310.

Legal Standards

Under Code of Civil Procedure section 2031.310, subdivision (a), a court may order a party to serve a further response to a demand for inspection when the court finds that: “(1) A statement of compliance with the demand is incomplete[;] (2) A representation of inability to comply is inadequate, incomplete, or evasive[; or] (3) An objection in the response is without merit or too general.”

The burden is on the moving party to “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) These facts must also be set forth in a separate statement filed by the moving party. (Cal. Rules of Court Rule 3.1345(c).) This burden “is met simply by a fact-specific showing of relevance.” (TBG Ins. Servs. Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 448.)

Meet and Confer

A party making a motion to compel further responses must include a declaration stating facts showing a “reasonable and good faith attempt” to resolve informally the issues presented by the motion before filing the motion. (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).)

The Declaration of Kevin Kumar states that the parties met and conferred extensively over e-mail to schedule and conduct an inspection of Plaintiffs’ vehicle before the Demand for Inspection was served. Defendant’s counsel states that the bulk of the e-mail correspondence took place between December 10, 2021 and June 17, 2022. (Declaration of Kevin Kumar ISO Mot. ¶¶ 3-9, Exhs. A-I.) Defendant’s counsel also states that he attempted to meet and confer with Plaintiffs after service of Plaintiffs’ objections to the Demand for Inspection, on July 19, 2022, but Plaintiffs did not respond. (Id. ¶ 11, Exh. K.) In opposition, Plaintiffs’ counsel contends that Defendant did not adequately meet and confer, because the July 19 correspondence stated that the requested inspection date of July 21, 2022 would stand, notwithstanding Plaintiffs’ statement of unavailability. (Declaration of Andrew Jung ISO Opp. ¶ 6.) Defendant’s July 19 meet and confer letter contains no reference to Plaintiffs’ statement that they were not available on July 21, 2022. (Kumar Decl. Exhs. J-K.) Further, the only objection specifically referenced in the July 19 letter is Plaintiffs’ objection that Defendant “unilaterally noticed the vehicle inspection and testing without consulting Plaintiff’s counsel.” (Id.) Neither the July 19 letter nor any of the other correspondence provided by Defendant addresses the remainder of Plaintiffs’ objections to the request in even the slightest respect. (Id.) These documents are not sufficient to show a “reasonable and good faith attempt” to informally resolve the matter. Nevertheless, the Court will consider the merits of the motion in the interest of an efficient resolution to this dispute.

Timeliness

A motion to compel further responses to interrogatories must be served “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 propounding party and the responding party have agreed in writing.” (Code Civ. Proc. § 2031.310(c).) The 45-day requirement is mandatory and jurisdictional. (Sexton v. Superior Court¿(1997) 58 Cal.App.4th 1403, 1410.)

Plaintiffs served their responses on July 18, 2022. (Kumar Decl. ¶ 8, Exh. J.). This motion was filed on August 25, 2022, only 37 days after the responses were served. The motion is therefore timely.

Analysis

Defendant moves to compel production of Plaintiffs’ vehicle for inspection under Code of Civil Procedure section 2031.310.

On June 17, 2022, Defendant served Plaintiffs with Defendant Volkswagen Group of America, Inc.’s Inspection Demand, Set Two. (See Kumar Decl. Exh. H.) Defendant’s Inspection Demand consisted of two requests. Request No. 18 demands:

The SUBJECT VEHICLE, along with: all keys, manuals, and equipment that came with the vehicle when Plaintiff(s) purchased or leased it; all equipment, parts, or components added to the vehicle since the date Plaintiff(s) purchased or leased it; all equipment, parts, or components removed from the subject vehicle since the date Plaintiff(s) purchased or leased it; and, if the subject vehicle is an electric or partial-electric vehicle, all charging cables and connectors that came with the vehicle when Plaintiff(s)’ purchased or leased it. VWGoA will test drive and inspect the subject vehicle and its equipment, parts, and components. No destructive testing or permanent disassembly will be performed without prior agreement with counsel. The inspection and testing will be photographed and/or videotaped.

(“SUBJECT VEHICLE” means the 2021 Audi RS Q8, automobile referenced in the Complaint Plaintiffs filed in this action, VIN#: WU1ARBF15MD007887.)

(Kumar Decl. Exh. H. pp. 1:25-2:7.) Request No. 21 demands:

All items that support YOUR claim that the SUBJECT VEHICLE is defective. VWGoA will inspect said item(s) and related equipment, parts, and components. No destructive testing or permanent disassembly will be performed without prior agreement with counsel. The inspection and testing will be photographed and/or videotaped.

(“YOU” or “YOUR” shall mean and refer to Plaintiff, JOHN DAVID MORAYNISS, who filed the instant lawsuit.)

(Id. p. 2:8-13.)

Plaintiffs responded with general objections and with specific objections to both requests. Plaintiffs generally objected that they were not available on the date inspection was demanded, that Defendant unilaterally noticed the inspection without consulting Plaintiff’s counsel, and that the notice did not describe the protocol of the inspection in sufficient detail. (Kumar Decl. Exh. J. p. 1:8-15.) Plaintiffs also demanded, in their general objections, that that the length of the inspection be limited to one business day, that Plaintiffs’ counsel and expert be permitted to be present for the entirety of the inspection, that no destructive testing, including removal or deletion of diagnostic codes, be undertaken without Plaintiffs’ consent, that Plaintiffs’ counsel be notified of any replacement or removal of parts before carrying those replacements out, and that all electronic data be made available in usable format to Plaintiffs’ counsel at the inspection or as soon as possible thereafter. (Id pp. 1:16-2:5.)

Plaintiffs also specifically objected to both requests as vague, ambiguous, and compound, as overly broad, as duplicative, burdensome, and harassing, as seeking information equally available to Defendant, as calling for a legal conclusion, as seeking privileged information, and as an inappropriate settlement demand. (See, e.g, Kumar Decl. Exh. J. pp.2:25-3:8.)

Defendant contends that good cause exists for these requests because they are relevant to the essential allegations of the Complaint: that Plaintiffs’ vehicle was defective, and that Defendant refused to repair it. Plaintiffs’ first subheading in their argument in opposition states that Defendant has not demonstrated good cause, but the body of Plaintiffs’ opposition does not address this contention. The Court concurs with Defendant that a demand for inspection of the subject vehicle and any other items supporting Plaintiffs’ contentions is facially relevant to this case and, therefore, that good cause exists for these requests.

Turning to Plaintiffs’ objections to the requests, in their opposition brief, Plaintiffs do not attempt to justify any of their objections, except to argue that Defendant did not adequately meet and confer with Plaintiffs to resolve this dispute. Instead, Plaintiffs contend that they have offered multiple dates for the vehicle inspection in February, and therefore the request should be denied. On the contrary, it is the Court’s view that, where the opposing party has essentially professed its willingness to comply with the demand, good cause exists to grant a motion to compel further responses, especially where, as here, the responding party has not justified any of its initial substantive objections.

Request for Sanctions

Defendant requests sanctions in the amount of $2,960 against Plaintiffs and their counsel, jointly and severally. In the body of their opposition, Plaintiffs request sanctions in the amount of $1,300.00 against Defendant and its counsel, jointly and severally.

Code of Civil Procedure section 2023.030(a) authorizes the Court to impose monetary sanctions on any attorney engaging in the misuse of the discovery process by requiring that attorney to pay the reasonable expenses incurred by anyone as a result of that conduct. (Code Civ. Proc. § 2023.030(a).) Code of Civil Procedure section 2031.310(h) requires the Court to impose sanctions against any party who unsuccessfully makes or opposes a motion to compel further response, 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. (Code Civ. Proc. § 2031.310(h).)

Here, as Defendant is the prevailing party on this motion, Plaintiffs are not entitled to monetary sanctions. However, in light of Defendant’s failure to adequately meet and confer to resolve this dispute following service of Plaintiffs’ objections to the inspection demand, the Court finds that the imposition of sanctions would be unjust. The Court therefore declines to award sanctions to Defendant.

CONCLUSION:

Accordingly, Defendant’s Motion to Compel Further Responses to Demand for Inspection is GRANTED.

Plaintiffs are ordered to produce the Subject Vehicle and all responsive materials on a mutually agreeable date on or before May 24, 2023.

Defendant’s request for sanctions is DENIED.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: January 4, 2023 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.