Case Number: BC623621 Hearing Date: April 20, 2018 Dept: 50

Superior Court of California

County of Los Angeles

Department 50

donald a. harbert, et al.,

Plaintiffs,

vs.

fca us llc, et al.,

Defendants.

Case No.:

BC 623621

Hearing Date:

April 20, 2018

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

DEFENDANT FCA US LLC’S MOTION TO COMPEL THE INSPECTION OF THE SUBJECT VEHICLE AND REQUEST FOR MONETARY SANCTIONS IN THE AMOUNT OF $4,286

Factual Background

Plaintiff Donald A. Harbert and Vicki L. Harbert (“Plaintiffs”) filed this action on June 13, 2016 against Defendants FCA US LLC (“FCA”) and Extreme Automotive Group (“Don-A-Vee”) (jointly, “Defendants”). The Complaint asserts causes of action for violations of the Song-Beverly Consumer Warranty Act (“Song-Beverly Act”), fraudulent inducement-concealment, and negligent repair. Plaintiffs’ claims are based on their purchase of a 2012 Jeep Grand Cherokee (the “Subject Vehicle”).

On January 17, 2018, FCA served an Amended Demand for Vehicle Inspection (the “Demand”), based on the parties’ prior agreement on March 2, 2018 as the date for inspection by FCA’s expert of the Subject Vehicle. (Yasuzawa Decl., Ex. C.) The Demand included as part of the inspection, the “[c]onnecting or utilizing [of] electronic tools or devices to access and record information or date from the described vehicle.” (Yasuzawa Decl., Ex. C.) Plaintiffs did not serve any objections to the Demand.

On March 2, 2018, when counsel for the parties arrived at the agreed upon location for the inspection, counsel for Plaintiffs instructed counsel for FCA that FCA would be required to turn over any data extracted from the vehicle immediately, and not three days before the deposition of FCA’s expert, as is required by Code of Civil Procedure section 2034.415. (Yasuzawa Decl., ¶ 9.) FCA declined to do so, and counsel for Plaintiffs shut down the inspection. (Yasuzawa Decl., ¶ 10.)

The parties participated in an informal discovery conference on March 21, 2018 on this issue but were unable to resolve the matter. (Yasuzawa Decl., ¶ 11.) FCA now moves to compel the inspection of the Subject Vehicle without the condition that the vehicle data be turned over immediately. Plaintiffs oppose.

Discussion

Any party may obtain discovery by “inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of any other party to the action.” (Code Civ. Proc. § 2010.010.) The demanding party may move for an order compelling further response to the demand if the demanding party deems that “[a]n objection in the response is without merit or too general.” (Code Civ. Proc., § 2031.310(a)(3).) Finally, an expert must produce any materials called for by the deposition notice no later than 3 business days before the deposition. (Code Civ. Proc., § 2034.415.)

FCA contends that the Demand was properly served, placed Plaintiffs on notice of the intent to extract date from the Subject Vehicle, and that there is no requirement that FCA turn over that data to Plaintiffs immediately. In opposition, Plaintiffs contend that it is reasonable to condition the vehicle inspection on the simultaneous sharing of all data downloaded during the inspection with Plaintiffs and that Plaintiffs had attempted to inform counsel for FCA of their position prior to the date of the inspection. (See Underwood Decl., ¶ 5.) However, as noted by FCA, no objection to the Demand was served. The Demand clearly indicated that data would be extracted at the inspection, and if Plaintiffs wanted to condition the extraction on simultaneous sharing of the data, an objection should have been served pursuant to Code of Civil Procedure section 2031.240. Though Plaintiffs make several arguments regarding why refusing to turn over data extracted at the vehicle inspection immediately is unreasonable, Plaintiffs do not cite to any authority that mandates this nor do they proffer any expert or other competent testimony to support their claims regarding the alleged risk of altering the data. Additionally, Plaintiffs contend that FCA may be able to alter the data to their advantage, but they provide no evidence that Plaintiffs are prevented from or unable to extract the data themselves, even before Defendants’ inspection.

Additionally, the Court finds that FCA timely designated its expert. Nothing in Code of Civil Procedure section 1011, subdivision (a) requires that service of an expert designation be made within a certain time. Plaintiffs indicate that January 2, 2018 was the last day to designate experts and then concede that FCA served its expert designation on January 2, 2018. (Opp’n, p. 10: 1-8.) The Court finds no defect with the timing of the service.

FCA requests that the Court order the vehicle inspection to take place on April 24, 2018, starting at 8 a.m. Plaintiffs do not object to the date but to the time and instead request that the inspection begin at 10 a.m. The Court finds that this is reasonable and therefore orders the vehicle inspection to proceed on April 24, 2018 at 10 a.m. pursuant to the Demand. Insofar as Plaintiffs now object to FCA refusing to turn over data extracted at the inspection, that objection is overruled.

Finally, FCA requests that the Court issue monetary sanctions against Plaintiffs pursuant to Code of Civil Procedure section 2023.030, for their misuse of the discovery process. The Court finds that Plaintiffs have made an unmeritorious objection to discovery without substantial justification, and therefore orders monetary sanctions in the amount of $4,286. (Yasuzawa Decl., ¶¶ 19-25.)

Conclusion

Based on the foregoing, FCA’s motion to compel the inspection of the Subject Vehicle is granted. The Court orders that the inspection of the Subject Vehicle to take place on April 24, 2018, at 10 a.m. The Court further orders Plaintiffs to pay $4,286 to FCA for the reasonable attorney’s fees and costs associated with bringing this motion within 20 days of this Order.

FCA is ordered to give notice of this ruling.