Judge: Virginia Keeny, Case: 21VECV01397, Date: 2023-03-02 Tentative Ruling

Case Number: 21VECV01397    Hearing Date: March 2, 2023    Dept: W

JAMES SCHWARM vs LUXURY AUTO CENTER INC, et al.

plaintiff/cross-defendant schwarm’s motion to compel discovery for inspection of vehicle and sign

Date of Hearing:        March 2, 2023                                               Trial Date:       May 15, 2023  

Department:              W                                                                    Case No.:        21VECV01397

Moving Party:            Plaintiff/Cross-Defendant James Schwarm

Responding Party:     Defendants/Cross-Complainants Luxury Auto Center, Inc. and Nelson Sanchez

BACKGROUND

On October 14, 2021, Plaintiff James Schwarm filed a complaint against Defendants Luxury Auto Center, Inc. and Nelson Sanchez for (1) claim and delivery; (2) breach of written contract; (3) breach of oral contract; (4) common counts; (5) conversion; (6) fraud on 6/20/15; (7) fraud after 6/20/15; and (8) rescission. Plaintiff alleges Plaintiff and Defendants entered into an agreement where Defendants were to “restore” Plaintiff’s 1957 Chevy 1 Ton Panel Truck. Plaintiff alleges Defendants breached the agreement by failing to restore the vehicle by the agreed upon time, replace the vehicle with its original parts, and use reasonable diligence to do the restoration.

On February 8, 2022, Luxury Auto Center, Inc. filed a cross-complaint against Schwarm asserting causes of action for (1) breach of contract; (2) fraud and deceit; (3) quantum meruit; (4) rescission; (5) unjust enrichment; (6) restitution; and (7) declaratory relief.

[Tentative] Ruling

Plaintiff/Cross-Defendant Schwarm’s Motion to Compel Discovery for Inspection of Vehicle and Sign’s is GRANTED, in part.

EVIDENTIARY OBJECTIONS

Defendant Luxury Auto Center, Inc. submits evidentiary objections to the declaration of Steven Chazen in support of Plaintiff’s Motion to Compel Inspection.

The court sustains objections 2 and 4 and overrules objections 1 and 4.

discussion

Plaintiff/Cross-Defendant Schwarm (“Plaintiff”) moves to compel discovery for the inspection of a vehicle and signs. Plaintiff seeks to inspect the vehicle to determine the current condition as well as the sign due to Defendant Lopez’s testimony that there is a sign at the body shop that states vehicles left are charged $180 per day storage fee.

As noted by Defendant, Plaintiff failed to cite any legal authority in support of their argument, which renders their position unsubstantiated. Parties must cite supporting legal authority in briefs submitted to the Court. (See Cal. Rule of Court, rule 3.1113(b) [“The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.”].)

Plaintiff briefly, however, states they are moving to compel pursuant to Code of Civil Procedure section 2031. A vehicle inspection has already occurred. As a result, it seems Plaintiff is moving to compel further inspection of the vehicle. A motion to compel further production must set forth specific facts showing good cause justifying the discovery sought by the inspection demand. (See CCP § 2031.310(b)(1).) It is not necessary for the motion to show that the material sought will be admissible in evidence. “Good cause” may be found to justify discovery where specific facts show that the discovery is necessary for effective trial preparation or to prevent surprise at trial. (See Associated Brewers Dist. Co. v. Superior Court (1967) 65 Cal.2d 583, 586-588; see also CCP §§ 2017.010, 2019.030(a)(1) (Information is discoverable if it is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence and it is not unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive.); Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1611-1612 (noting a party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence).)

Plaintiff has not demonstrated good cause for a second inspection. Plaintiff claims they would like to conduct a second vehicle inspection to determine the current condition of the vehicle.  But it was plaintiff who elected to inspect the vehicle early on in the litigation; having made that election, plaintiff cannot use that decision as good cause for a second inspection.  Further, plaintiff has not presented any evidence that the car’s condition has changed.  If defendant intends to offer any evidence that the car has been further worked on or reassembled since the first inspection, the court may order a second inspection.  As for inspection of the sign, Defendant’s counsel has made clear they have not objected to the inspection of the sign. Plaintiff may inspect the sign on a date agreed upon by the parties.

The court notes Defendant also seeks monetary sanctions in the amount of $4,325.62 for Plaintiff improperly bringing a motion to compel a second inspection. The court denies Defendant’s request for monetary sanctions at this time since it is uncertain whether defendant intends to assert that it has completed the car repairs (in whole or in part), since the initial inspection.  The court denies fees without prejudice to a renewed request for sanctions. (CCP §2031.310(h).)