Judge Theresa M. Traber, Case Number: 22STCV18068, Date: 2024-11-06 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCV18068, Date: 2024-11-06 Tentative Ruling

Case Number: 22STCV18068 Hearing Date: November 6, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: November 6, 2024 TRIAL DATE: March 25, 2025

CASE: Stephen Suh v. American Honda Motor Co., Inc.

CASE NO.: 22STCV18068

MOTION FOR TERMINATING SANCTIONS, OR, IN THE ALTERNATIVE, ISSUE AND/OR EVIDENTIARY SANCTIONS

MOVING PARTY: Plaintiff Stephen Suh.

RESPONDING PARTY(S): Defendant American Honda Motor Co., Inc.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a lemon law action that was filed June 1, 2022. Plaintiff alleges he purchased a 2019 Honda Odyssey which manifested electrical, transmission, and engine defects.

Plaintiff moves for terminating sanctions, or, in the alternative, issue and/or evidentiary sanctions for Defendant’s repeated failure to produce documents pursuant to Court orders.

TENTATIVE RULING:

Plaintiff’s Motion for Terminating Sanctions is GRANTED.

Defendant’s Answer to the Complaint is hereby stricken and default entered this date.

The Court sets a hearing on an Order to Show Cause Re: Entry of Default Judgment for Friday, December 6, 2024, at 8:30 AM.

DISCUSSION:

Plaintiff moves for terminating sanctions, or, in the alternative, issue and/or evidentiary sanctions for Defendant’s repeated failure to produce documents pursuant to Court orders.

Legal Standard for Terminating Sanctions

The Court has the authority to impose sanctions against a party that engages in any misuse of the discovery process (Code Civ. Proc. § 2023.030), including “[f]ailing to respond or to submit to an authorized method of discovery.” (Code Civ. Proc. §§ 2023.010(d).) A party engaging in this conduct may be subject to sanctions including monetary sanctions (Code Civ Proc. § 2023.030(a)), evidence sanctions (Code Civ. Proc. § 2023.030(c)) or terminating sanctions. (Code Civ. Proc. § 2023.030(d).) “[T]rial courts should select sanctions tailored to the harm caused by the misuse of the discovery process and should not exceed what is required to protect the party harmed by the misuse of the discovery process.” (Dept. of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191, disapproved of on other grounds in Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493.) Sanctions are generally imposed in an incremental approach. (Id.) Generally, the appropriate sanctions when a party repeatedly and willfully fails to provide evidence to the opposing party as required by the discovery rules is preclusion of that evidence from the trial. (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 390, disapproved of on other grounds by Brown v. USA Taekwondo (2021) 11 Cal.5th 204.)

In considering a motion for terminating sanctions, the Court is to attempt to “tailor the sanction to the harm caused by the withheld discovery.” (Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1618-1619.)

[T]he question before this court is not whether the trial court should have imposed a lesser sanction; rather, the question is whether the trial court abused its discretion by imposing the sanction it chose. [Citation.] Moreover, imposition of a lesser sanction would have permitted [defendants] to benefit from their stalling tactics. [Citation.] The trial court did not abuse its discretion by tailoring the sanction to the particular abuse.

(Id. at 1620.) Moreover, in deciding whether to impose a terminating sanction, the trial court is to consider the totality of the circumstances: the “conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.” (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)

Request for Judicial Notice

Plaintiff requests that the Court take judicial notice of a series of Court orders in an unrelated action. These documents are irrelevant, and Plaintiff’s request is therefore DENIED. (Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 (“[J]udicial notice . . . is always confined to those matters which are relevant to the issue at hand.”].)

Procedural History

On February 27, 2023, the parties came before the Court on a Motion to Compel Further Responses to Requests for Production propounded by Plaintiff to Defendant. (See generally February 27, 2023 Minute Order.) The requests at issue in that motion sought (1) documents related to the subject vehicle (Request No. 1); (2) pre-sale documents related to the same electrical system as the one present in the vehicle (No. 17); (3) documents concerning investigations, reports, and other data relating to defects in vehicles with the same transmission system as the subject vehicle (Nos. 20, 24-27, 32, 37, 40, 85, 86, 139); (4) similar documents concerning the electrical system of similar vehicles (Nos. 44, 48-51, 56, 61, 64, 100); (5) Defendant’s materials concerning repurchase requests and lemon law generally (Nos. 110, 120); and (6) documents concerning communications with government agencies and suppliers relating to the class of vehicles. (Nos. 125-128). (Declaration of Mani Arabi ISO Mot. Exh. 1; see also February 27, 2023 Minute Order pp. 4-5.) The Court found that Defendant’s responses to these requests were inadequate because Defendant asserted meritless objections and provided evasive answers that improperly narrowed the scope of the requests, and, therefore, the Court ordered Defendant to provide verified, code-compliant responses without objections, including ESI and email searches, within 60 days. (February 27, 2023 Minute order pp. 6-8.)

Over a year later, Plaintiff moved to compel compliance with the February 27, 2023 order, contending that Defendant had not served responses in the manner specified by the Court’s order. The record before the Court established that Defendant had, on April 28, 2023, served unverified responses limiting the scope of the production to those documents not subject to objections. (May 23, 2024 Minute Order p. 3.) Defendant subsequently served verifications on January 11, 2024 and responsive documents on January 11 and 12. (Id.) Defendant justified its failure to produce responses by claiming it was “inundated” because it was attempting to redact personally identifying information and discussing the scope of ESI searches with Plaintiff’s counsel. (Id.) The Court found Defendant’s justifications inadequate, specifically noting that it had ordered verified responses without objections, including the production of ESI and email searches, and stating that “redaction of confidential information is not a valid justification where the parties have stipulated to a protective order regarding the handling of that information, as they did here on October 10, 2022.” (Id.) The Court therefore granted the Motion to Compel Compliance with respect to Requests Nos. 1, 20, 24-27, 32, 37, 40, 85, 86, 110, 120, 125-128, and 139, but not as to Requests Nos. 17, 44, 48-51, 56, 61, 64, and 100, because Plaintiff stated, following the January 2024 production, that further responses were no longer sought. (Id.) As part of that order, the Court specifically ordered production of electronically stored information and emails using search terms specified by Plaintiff in the reply to the Motion to Compel Compliance. (Id. p. 4.)

Defendant’s Failure to Comply With Court Orders

Plaintiff moves for terminating sanctions on the basis that Defendant has not complied with the Court’s May 23, 2024 Order. At the time the motion was filed, Defendant had made no supplemental production whatsoever following the May 23, 2024 Order. (Arabi Decl. ¶ 21.)

In response, Defendant contends that it produced responsive emails on July 1, 2024 following a “review process to determine responsiveness and to redact any non-responsive information directed to vehicles beyond the 2019 Honda Odyssey and concerns that are at issue in this litigation, as well as any confidential personally identifiable information . . . contained within them.” (Declaration of Ricardo Azcarraga ISO Opp. ¶ 29.) This production on its face is not compliant with the Court’s order, and Defendant fails to address this deficiency in its opposition. As Plaintiff argues in his reply brief, the Court has repeatedly castigated Defendant for unilaterally narrowing the scope of its production and specifically stated that redactions were inappropriate in light of the October 10, 2022 stipulation for a protective order.

As to the remainder of the responses, Defendant admits it did not provide supplemental responses as originally ordered because that obligation was “lost in the shuffle,” and the oversight was only recognized upon receipt of the instant motion. (Azcarraga Decl. ¶ 30.) Supplemental responses were served on October 23, 2024. (Id. Exh. T.) Taken on its own, the conclusory assertion of Defendant’s counsel regarding Defendant’s discovery obligations being “lost in the shuffle” would be of little persuasive force. However, Plaintiff identifies numerous deficiencies in the production and the responses which raise greater concerns.

According to Plaintiff, Defendant’s supplemental responses identify the search terms run and documents in the existing production which are responsive to each request, but do not identify or produce any new documents. While this, in and of itself, is not necessarily a failure to comply with the Court’s order, Plaintiff also states that Defendant’s supplemental responses employed search terms which did not match the terms specified by Plaintiff in the Motion to Compel Compliance. Plaintiff specifically points to several parentheses in the requested search terms which are absent or moved in the search terms that were used, thereby altering the actual searches done. (Reply p.4:6-28.) Plaintiff also objects to Defendant’s production as improperly narrowed, based on Defendant’s admission that it conducted an additional, undisclosed “review process” and redaction of documents. Further, Plaintiff contends that Defendant did not produce documents which logically should exist and be produced, including records from Defendant’s “eVRM” repair and servicing database, NHTSA documents, and materials such as emails and customer complaints which may have been affected by the improper search terms.

With respect to the NHTSA documents, Plaintiff explains Defendant’s production has identified only a series of revisions to a single Technical Service Bulletin, but has not identified or produced any communications, reports, or other documents regarding that TSB. (See Supplemental Declaration of Mani Arabi ISO Reply Exh. 3. No. 125.) As to the eVRM reports, as sought in Request No. 1, Defendant asserts that no responsive documents are available because the eVRM “is not a document and is not able to be printed.” (See Opposition p.11:25-26.) This argument smacks of deliberate evasiveness, as the thrust of Plaintiff’s demand was for reports from a database. Moreover, Plaintiff, in response, has provided eVRM reports from a separate action involving this Defendant, thereby conclusively establishing that the materials sought by Plaintiff are, in fact, documents which can be printed and produced. (Arabi Supp. Decl. Exh. 5.)

In its opposition to this motion, Defendant argues that it has continuously acted in good faith to comply with this Court’s orders. The record belies that contention. Defendant has persisted, over Plaintiff’s objection and in direct violation of the Court’s instruction, in unilaterally restricting and redacting its production of documents. Defendant has deviated from or altered the electronic search terms which it was expressly instructed to employ, and it has failed to produce responsive materials which both logic and evidence indicate should exist and be produced. Moreover, Defendant has twice disobeyed Court orders to produce responses within a specified time, choosing instead to make an initial, inadequate production and then waiting until Plaintiff brings a further motion and threatens sanctions to supplement its production—without actually curing the deficiencies that gave rise to the motion. This is not the behavior of a party who is engaging in the discovery process in good faith. Instead, Defendant’s conduct reflects a contempt for the Court’s authority and for Plaintiff’s right to pursue discovery in this action. The Court is under no obligation to permit Defendant to continue to engage in these stalling tactics.

Considering the totality of the circumstances, including Defendant’s repeatedly evasive responses and contemptuous resistance to Court orders, the lengthy delays in discovery of plainly relevant evidence, and the substantial enforcement burdens shouldered by Plaintiff, the Court concludes that the ultimate sanction of termination is warranted in this action. Thus, the Court grants Plaintiff’s motion for terminating sanctions, striking Defendant’s Answer and entering default against it.

CONCLUSION:

For the reasons above, Plaintiff’s Motion for Terminating Sanctions is GRANTED.

Defendant’s Answer to the Complaint is hereby stricken and default entered this date.

The Court sets a hearing on an Order to Show Cause Re: Entry of Default Judgment for Friday, December 6, 2024 at 8:30 AM.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: November 6, 2024 ___________________________________

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.