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} KNIGHT LAW GROUP LLP
Steve Mikhov (SBN 224676)
9 || Daniel Kalinowski (SBN 305087) . Te >
1801 Century Park East, Suite 2300 SUPERIOR COURT OF CALIFORNIA
3 || Los Angeles, CA 90067 COUNTY OF PLACER
x Telephone: (310) 552-2250 DEC 18 ]
Fax: (310) 552-7973 “ JAKE CHATTERS
5 EXECUTIVE OFFICER & CLERK
By: C. Valian-Brown, Deputy
6 || Attorneys for Plaintiff, OG
ANNA P. KING
7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF PLACER
10 || ANNA P. KING, Case No. $CV0038637 RY
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FAX
,
11 Unlimited Jurisdiction
Plaintiff,
12 PLAINTIFF’S OPPOSITION TO
Vs. DEFENDANT HYUNDAI MOTOR
13 AMERICA’S MOTION TO COMPEL
INSPECTION OF PLAINTIFFS’
_i | Sana
ee
i ia CMOOR:
Seere
ti AEC
cae, ere
d DOES
ee
1 SANCTIONS
$896.00;
IN
DECLARATION
THE AMOUNT
OF
OF
DANIEL
through 10, inclusive, KALINOWSKI IN SUPPORT
16 THEREOF
17 Defendant.
18 Dept.: 40 ; ;
Judge: Commissioner Michael A. Jacques
19 Hearing Date: January 2, 2018
0 Hearing Time: 8:30 a.m.
Complaint Filed: October 28, 2016
21 Trial Date: April 23, 2018
22
23
24
25
26
27
28 i
PLAINTIFF’S OPPOSITION TO DEFENDANT HYUNDAI MOTOR AMERICA’S MOTION TO
COMPEL PRODUCTION OF PLAINTIFF’S VEHICLE FOR INSPECTION AND REQUESTS FOR
SANCTIONS IN THE AMOUNT OF $896.00
=
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
NO
In this action against Hyundai Motor America (“Defendant”) for violation of the Song-
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Beverly Act, Defendant has sought judicial intervention through this Motion to compel the
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inspection of Plaintiff Anna P. King’s (“Plaintiff”) vehicle despite the fact that said inspection
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has never been refused and the parties have already agreed on a date of December 29, 2017,
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rendering this Motion completely moot. Defendant’s continued insistence on burdening the
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Court with needless motions is inexplicable. Moreover, Defendant’s rush to the Court even
6&6
before dates were set is even more puzzling given that the trialis months away and the parties
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had ample time to resolve thisminor scheduling conflict before the discovery cutoff.
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Plaintiff respectfully submits that this Motion is premature and moot and requests that it
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be either denied outright with prejudice or else continued until such time as the parties have had
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an opportunity to work out the logistics without the Court’s intervention. If,after a reasonable
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continuance, defendant can show Plaintiff has failed to cooperate to make her vehicle available
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for inspection, the Motion can be reconsidered atthat time. But there isno benefit to considering
a
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a motion where the requested relief (inspection of Plaintiff's vehicle) has never been disputed or
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refused and the parties have already resolved the supposed issue.
Furthermore, sanctions are entirely uncalled for where the Motion is procedurally .
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improper and Defendant has failed to act in good faith in working with Plaintiff to resolve this
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(non-)dispute without burdening the Court.
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II. ARGUMENT
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A. Defendant’s Motion isProcedurally Defective
NM
Defendant’s Notice of Motion is procedurally deficient because itfails to identify the
kRaPeSB
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grounds upon which relief is sought. A Notice of Motion must state the grounds upon which
the motion will be made, and must state in the opening paragraph the nature of the order and
MN
grounds for issuance of the order. (Code Civ. Proc. § 1010; Cal. Rules of Court rule 3.1110;
see In re Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4" 495, 514.) While a
discussion in the memorandum would not be grounds to save Defendant’s defective notice,
N
eu
1
PLAINTIFF’S OPPOSITION TO DEFENDANT HYUNDAI MOTOR AMERICA’S MOTION TO
COMPEL PRODUCTION OF PLAINTIFF’S VEHICLE FOR INSPECTION AND REQUESTS FOR
SANCTIONS IN THE AMOUNT OF $896.00
even the memorandum fails to cite applicable authority.
Defendant cites to only California code of Civil Procedure sections 2017.010,
H
2031.010, and 2031.310(b)(1). Defendant’s stated grounds for the motion at hand do not permit
W
Defendant’s requested relief. Code of Civil Procedure section 2017.010 permits any party to
BR
obtain discovery “regarding any matter ...that is relevant to the subject matter involved in the
TA
pending action.” (Code Civ. Proc. § 2017.010.) Section 2031.010 permits any party to make a
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demand “that any other party produce and permit the party making the demand... to inspect
YN
and to photograph, test, or sample any tangible things that are in the possession, custody, or
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control of the party on whom the demand ismade.” (Code Civ. Proc. § 2031.010(c).) Code of
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Civil Procedure section 2031.300 authorizes the party demanding an inspection to move for an
order compelling further response to the demand, provided that the moving party can show a
reasonable attempt to resolve informally, including a declaration demonstrating a reasonable
iets
and good faith attempt at an informal resolution of each issue presented by the motion, pursuant
to Code Civ. Proc., § 2016.040. (Code Civ. Proc. § 2031.310(b).)
In her response, Plaintiff did not object to Defendant’s demand on the basis that the
discovery sought was immaterial to the action under section 2017.010, or that the inspection
was outside the scope of discovery under 2031.010. (Declaration of Daniel Kalinowski,
“Kalinowski Dec.,” §3) Defendant itself even makes note of the absence of any other
objections by Plaintiff. Moreover, Plaintiff did not refuse to submit to the inspection, and in
ORD
fact attempted to provide Defendant with dates on which to do so. (Kalinowski Dec., §3.)
Accordingly, sections 2017.010 and 2031.010 have no significance to the issue at hand.
BRD
Furthermore, as discussed in more detail below, Defendant did not meet its obligation to
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reasonably and in good faith resolve the issue before filing its motion pursuant to section
SD
2016.040. Thus, Defendant’s Motion to Compel is procedurally defective and should be
RN
denied.
NO
B. Defendant has not Adequately Met and Conferred to Informally Resolve the
Issues in this Motion, and the Court Should Deny this Motion Without
2
PLAINTIFF’S OPPOSITION TO DEFENDANT HYUNDAI MOTOR AMERICA’S MOTION TO
COMPEL PRODUCTION OF PLAINTIFF’S VEHICLE FOR INSPECTION AND REQUESTS FOR
SANCTIONS IN THE AMOUNT OF $896.00
Prejudice or Continue Because the Parties Have Already Established a Date
for the Vehicle Inspection to Take Place
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A declaration under Code of Civil Procedure, section 2016.040 shall statefacts showing
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a reasonable and good faith attempt at an informal resolution of the issues presented by the
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motion. (Code Civ. Proc. § 2016.040.) A determination of whether attempts atinformal resolution
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are adequate involves the consideration of the circumstances: “{t]he level of effort at informal
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resolution which satisfies the ‘reasonable and good faith attempt’ standard depends on the |:
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circumstances... The history of the litigation, the nature of the interaction between counsel, the
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nature of the issues, the type and scope of discovery requested, the prospects for success and other
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similar factors can be relevant.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.)
10
Here, Defendant has not shown that ithas adequately met and conferred with Plaintiffs to
11
informally resolve the issues presented by the present Motion to Compel. Plaintiff indicated in
12
her response that she would provide a new availability for inspection, and thereafter attempted to
13
work with Defendant’s counsel to find adequate time to submit tothe demand. (Kalinowski Dec.,
14
43, 4; Exh. B.) On November 30, 2017, Plaintiff’s counsel provided February 13, 2018 as a date
15
for the Vehicle Inspection to take place. (Kalinowski Dec., §4; Exh. B.) Defendant responded
16
only by demanding that any dates be in December. (Kalinowski Dec., §4; Exh. B.) On December
17
1, 2017, in an effort to work within Defendant’s narrow parameters, Plaintiff provided additional
18
dates of December 29, 2017 for the Vehicle Inspection to take place, and Defendant promptly
19
agreed. (Kalinowski Dec., 93, 4; Exh. C.) Vehicle inspections are, by their very nature, difficult
20
to arrange because they require coordination between Plaintiff's counsel, Defendant’s counsel,
21
Plaintiff's expert, Defendant’s expert and Plaintiff. Furthermore, Defendant has asked that
22
Plaintiff's deposition be taken before the vehicle inspection. Even with these complicated
23
scheduling issues, Plaintiff was able to find adate to produce the vehicle on December 29, 2017,
24 and Defendant confirmed. (Kalinowski Dec., 95; Exh. C.)
25 Defendant blithely claims that Plaintiff has had three months to provide dates for the
26 inspection, yet fails to mention that it requested that the inspection occur on a date following
27 Plaintiff's deposition, which is the subject of another motion to compel, adding yet another
28 3
PLAINTIFF’S OPPOSITION TO DEFENDANT HYUNDAI MOTOR AMERICA’S MOTION TO
COMPEL PRODUCTION OF PLAINTIFF’S VEHICLE FOR INSPECTION AND REQUESTS FOR
SANCTIONS IN THE AMOUNT OF $896.00
wrinkle to the logistics. Defendant also failsto point out that communications with Plaintiff's
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requested dates for depositions and vehicle inspections for at least five cases (5),and in no way
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indicated that the present action was more pressing than the others, or that a date has already been
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provided and accepted.
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C. Monetary Sanctions are Inappropriate
UW
As mentioned above, Defendant’s Motion failed to comply with the meet and confer
DA
requirements of Code Civ. Proc., §2016.040. Given this noncompliance with the code, coupled
ND
with the Defendant’s minimal efforts to avoid the necessity of filing this Motion, monetary
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sanctions are uncalled for. Code Civ. Proc. § 2025.410(g)(2) (sanctions shall not be assessed if
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“the court finds that the one subject to the sanction acted with substantial justification or that other
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circumstances make the imposition of the sanction unjust).
Iii. CONCLUSION
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Defendant’s Motion should be denied outright because it is procedurally deficient,
premature, and rendered moot by the fact that a date for Vehicle Inspection has been agreed to.
For the same reasons, sanctions should be denied.
DATED: December 19, 2017 KNIGHT LAW GROUP LLP
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Steve Mikhov (SBN 224676)
Daniel Kalinowski (SBN 305087)
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Attorneys for Plaintiff,
ANNA P. KING
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PLAINTIFF’S OPPOSITION TO DEFENDANT HYUNDAI MOTOR AMERICA’S MOTION TO
COMPEL PRODUCTION OF PLAINTIFF’S VEHICLE FOR INSPECTION AND REQUESTS FOR
SANCTIONS IN THE AMOUNT OF $896.00
DECLARATION OF DANIEL KALINOWSKI
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I,Daniel Kalinowski, declare as follows:
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1. I am an attorney duly licensed to practice law before allof the courts of the State
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of California. Iam an associate at the law firm of Knight Law Group LLP, attorneys of record for
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Plaintiff ANNA P. KING (“Plaintiff”). I have personal knowledge of the following facts, and, if
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called to testify regarding those matters, I could and would competently testify thereto.
NDR
iz On August 28, 2017, Defendant HYUNDAI MOTOR AMERICA (“Defendant’
or “HMA”) served Plaintiff with a Demand for Vehicle Inspection, unilaterally scheduling a
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vehicle inspection to take place on November 10, 2017. A true and correct copy of Defendant’s
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Demand for Vehicle Inspection is attached hereto as Exhibit A.
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3. On November 2, 2017, Plaintiffs served Defendant with their objections to
Defendant’s vehicle inspection, stating that Plaintiffs and their counsel were unavailable for the
unilaterally-scheduled date, and indicating that Plaintiff would provide acceptable dates.
4, In an email correspondence dated November 28, 2017, Plaintiff provided
i
Defendant with dates of February 12, 2017 and February 13, 2017, for vehicle inspection and
a
deposition. Defendant responded with demand that the dates be in December, 2017. A true and
correct copy of Defendant’s Demand for Vehicle Inspection isattached hereto as Exhibit B.
i
5. On December 1, 2017, Plaintiff suggested dates of December 28, 2017 and
December 29, 2017 for vehicle inspection and deposition. Defendant responded that itagreed to
these dates, and confirmed them with Plaintiff. A true and correct copy of Defendant’s Demand
for Vehicle Inspection isattached hereto as Exhibit C.
RDN
6. On November 18, 2017, without discussing any alternative dates with Plaintiff,
NY
Defendant filed the present Notice of Motion and Motion to Compel the Vehicle Inspection of
Plaintiff and for an Award of Sanctions. (“Motion to Compel”).
BD
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I declare under penalty of perjury under the laws of the State of California that the
foregoing istrue and correct.
5
PLAINTIFF’S OPPOSITION TO DEFENDANT HYUNDAI MOTOR AMERICA’S MOTION TO
COMPEL PRODUCTION OF PLAINTIFF’S VEHICLE FOR INSPECTION AND REQUESTS FOR
SANCTIONS IN THE AMOUNT OF $896.00
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Executed December 18, 2017, in Los Angeles, California.
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Daniel Kalinowski (SBN 305087)
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PLAINTIFF’S OPPOSITION TO DEFENDANT HYUNDAI MOTOR AMERICA’S MOTION TO
COMPEL PRODUCTION OF PLAINTIFF’S VEHICLE FOR INSPECTION AND REQUESTS FOR
SANCTIONS IN THE AMOUNT OF $896.00
EXHIBITA
Sohey! Tahsildoost (Bar No. 271294)
THETA LAW FIRM, LLP
15901 Hawthorne Blvd., Suite 270
Lawndale, CA 90260
Telephone: (424) 297-3103
Facsimile: (424) 286-2244
~
Attorneys for defendant Hyundai Motor America
A
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
NN
COUNTY OF PLACER
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ANNA P. KING, Case No.: SCV0038637
gee” Neca” Neaqare” Sonar
il Plaintiff, DEFENDANT HYUNDAI MOTOR
AMERICA’S DEMAND FOR INSPECTION
12 vs. OF
Seer
PROPERTY
eee” Seer
13 HYUNDAI MOTOR AMERICA, a Dept.: 40
California Corporation, and DOES 1 Judge: Commissioner Michael A. Jacques
Nee” Soe”
14 through 10, inclusive,
Neer
15 Defendants. Complaint Filed: October 28, 2016
Nese” Sse” Nee” Nema’ Smee” Smee” Nee” Noa”
Trial Date: April 23, 2018
16
17
18
19
Nowe
20 PLEASE TAKE NOTICE that Hyundai Motor America demands that plaintiff produce
21 for inspection plaintiff's 2010 Hyundai Tucson, VIN KM8JU3ACXAU015808 and any parts,
22 equipment, and/or accessories purchased for, installed on, connected with, or deriving from said
23 vehicle, atFolsom Lake Hyundai, 12530 Auto Mall Cir, Folsom, CA 95630, telephone (916)
24 293-4760, on November 10, 2017 at 10:00 a.m.
25 The inspection will be for the purpose of evaluating, diagnosing, driving, operating,
26 measuring, photographing, videotaping and testing the vehicle atsaid designated location. The
27 inspection may include without limitation each of the following:
28 MAKING,
ANNA\DISCOVERY\NTVIOl
DOCX 1
DEFENDANT HYUNDAI MOTOR AMERICA’S DEMAND FOR INSPECTION OF
PROPERTY
1. Inspecting the entire vehicle.
Clearing and then testing for fault codes.
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Recording vehicle data.
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Adding fuel or other fluidsas necessary.
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Test driving the vehicle.
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A
NSD
(x
Starting/stopping the engine.
Removing and replacing any non-factory parts.
8. Removing and replacing components for testing purposes.
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9. Disassembling and reassembling components for testing purposes.
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10. Temporarily installing factory parts or new parts, and then replacing the originals.
ll 11. Connecting diagnostic tools.
12 12. Running diagnostic tests.
13 Said inspection will continue day-to-day, Sundays and holidays excluded, until
14 completed.
15 Dated: August 25, 2017
16 THETA LAW FIRM, LLP
a
,
17
18
SOHEYL TAHSILDOOST
19 Attorneys fordefendant Hyundai Motor America
20
21
22
23
24
25
26
27
28 MAKING,
ANNA\DISCOVERYINTVIO1.DOCX 2
DEFENDANT HYUNDAI MOTOR AMERICA’S DEMAND FOR INSPECTION OF
PROPERTY |
PROOF OF SERVICE
(Code Civ. Proc., § 1013a(3) Revised 5-1-88)
I am over the age of 18, not a party tothis action, and employed inthe county where this mailing
WN
occurred. My business address is 15901 Hawthorne Blvd., Suite 270, Lawndale, CA 90260. On
August 25, 2017, I served the following documents described as DEFENDANT HYUNDAI
W
MOTOR AMERICA’S DEMAND FOR INSPECTION OF PROPERTY on interested
parties in this action by placing original/true copies thereof in sealed envelopes addressed as
SF
ollows:
A
Steve Mikhov Bryan Charles Altman
Amy Morse The Altman Law Group
DW
Knight Law Group, LLP 6300 Wilshire Blvd., Suite 980
1801 Century Park East, Suite 2300 Los Angeles, CA 90048
nN
Los Angeles, CA 90067 (323) 653-5581 Phone
(310) 552-2250 Phone (323) 653-5542 Fax
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(310) 552-7973 Fax
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[
Cc: 'Steven Correa’ ; Irene Reznik ; Holly
Ashcraft ; Joel E.Elkins ; Christopher
Urner
Subject: Anna P. King v.HMA
Soheyl,
Our clientisavailable for deposition on February 12.
Our Expert and our office are available for the vehicle inspection on February 13.
Thanks,
Roxane L'Yvonnet
The Altman Law Group
6300 Wilshire Boulevard, Suite 980
Los Angeles, California 90048
Telephone: (323) 653-5581
Facsimile: (323) 653-5542
E-Mail: rlyvonnet@altmaniawgroup.net
DO NOT read, copy or disseminate thiscommunication unless you are the intended addressee.
This e-mail communication may contain confidential and/or privileged information intended only
for the addressee. Ifyou have received thiscommunication in error,please callus (collect)
immediately at (323) 653-5581 and ask to speak to the sender of the communication. Also,
please e-mail the sender and notify the sender immediately that you have received the
communication inerror.
EXHIBIT C
From: StevenCorrea
To: Roxane L"Yvonnet;
“SoheylTahsildoost®
Ca: IreneReznik;
HollyAshcraft;
JoelE.Elkins;
Christopher
Urner
Subject: RE:Anna P.Kingv.HMA
Date: Wednesday,December 13,2017 3:23:28
PM
Roxane,
The 28°" and the 29"? work for our office, dates are confirmed.
Thank you,
Steven Correa, Office Manager
Theta Law Firm, LLP
15901 Hawthorne Blvd.
Suite 270
Lawndale, CA 90260
T 424.297.3103
F 424.286.2244
E scorrea@thetafirm.com
W www.thetafirm.com
CONFIDENTIAL COMMUNICATIONS
This information is intended for use by the individuals or entity towhich itisaddressed, and may
contain information that is privileged,confidential, and exempt from disclosure under applicable
law. Ifthe reader of thismessage is not the intended recipient, or employee or agent responsible
for delivering the message to the intended recipient, you are hereby notified that any dissemination,
distribution, or copying of thiscommunication isstrictlyprohibited. Ifyou have received this
communication inerror, please notifyus immediately by telephone and delete the material.
From: Roxane L'Yvonnet [mailto:rlyyonnet@altmanlawgroup.net]
Sent: Friday, December 1, 2017 2:46 PM
To: Soheyl Tahsildoost
Cc: 'Steven Correa’ ; Irene Reznik ; Holly
Ashcraft ; Joel E. Elkins ; Christopher
Urner
Subject: RE: Anna P. King v.HMA
Soheyl,
We can do the deposition on 12/28 and the vehicle inspection on 12/29.
Please confirm these dates work with your office.
Thank you,
Best
From: Soheyl Tahsildoost [mailto:st@thetafirm.com]
Sent: Thursday, November 30, 2017 6:49 PM
To: Roxane L'Yvonnet
Ce: Steven Correa’ ; Irene Reznik ; Holly
Ashcraft ; Joel E.Elkins ; Christopher
Urner
Subject: RE: Anna P. King v. HMA
Roxane,
i'dlike to have dates in December. Our deadline foran MSJ isinthe first
couple of weeks of
January. |want to complete the plaintiff'sdeposition and vehicle inspection inDecember, unless
you'll stipulate to move back the trialdate.
Thanks,
Soheyl Tahsildoost, Esq.
Theta Law Firm, LLP
15901 Hawthorne Biva.
Suite 270
Lawndale, CA 90260
T 424.297.3103
F 424.286.2244
W thetafirm.com
CONFIDENTIAL COMMUNICATIONS
This information isintended for use by the individuals or entity towhich itisaddressed, and may
contain information that is privileged, confidential, and exempt from disclosure under applicable
law. Ifthe reader of this message isnot the intended recipient,or employee or agent responsible
for delivering the message to the intended recipient, you are hereby notified that any dissemination,
distribution, or copying of thiscommunication isstrictlyprohibited. Ifyou have received this
communication inerror, please notify us immediately by telephone and delete the material.
From: Roxane L'Yvonnet [mailto:rlyvonnet@altmanlawgroup.net]
Sent: Thursday, November 30, 2017 9:18 AM
To: Soheyl Tahsildoost
Ce: ‘Steven Correa’ ; Irene Reznik ; Holly
Ashcraft ; Joel E.Elkins ; Christopher
Urner
Subject: Anna P. King v.HMA
Soheyl,
Our clientis available fordeposition on February 12.
Our Expert and our office are available for the vehicle inspection on February 13.
Thanks,
Roxane L'Yvonnet
The Altman Law Group
6300 Wilshire Boulevard, Suite 980
Los Angeles, California 90048
Telephone: (323) 653-5581
Facsimile: (323) 653-5542
E-Mail: rlyvonnet@altme
DO NOT read, copy or disseminate thiscommunication unless you are the intended addressee.
This e-mail communication may contain confidential and/or privileged information intended only
for the addressee. Ifyou have received thiscommunication inerror, please callus (collect)
immediately at (323) 653-5581 and ask to speak tothe sender of the communication. Also,
please e-mail the sender and notify the sender immediately that you have received the
communication inerror.
PROOF OF SERVICE
S&S
NO (Code of Civil Procedure §1013a)
1am employed in the County of Los Angeles, State of California. I am over the age of 18
years and not a party to the within action. My business address is 1801 Century Park East, Suite
WY
2300, Los Angeles, CA 90067.
SH
I served the foregoing document described as:
A
PLAINTIFF’S OPPOSITION TO DEFENDANT HYUNDAI MOTOR
DH
AMERICA’S MOTION TO COMPEL INSPECTION OF PLAINTIFFS’
NIN
VEHICLE AND REQUEST FOR SANCTIONS IN THE AMOUNT OF $896.00;
DECLARATION OF DANIEL KALINOWSKI IN SUPPORT THEREOF
Co
Said document was served on the interested parties in this action, by placing true copies
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thereof enclosed in sealed envelopes, with postage prepaid, addressed as follows:
|S
Soheyl Tahsildoost, Esq. Bryan C. Altman, Esq.
le
THETA LAW FIRM, LLP The Altman Law Group
|
15901 Hawthorne Blvd., Suite 203 6300 Wilshire Blvd., Ste. 980
NP
Lawndale, CA 90260 Los Angeles, CA 90048
ATTORNEYS FOR DEFENDANT, Email: bryan@altmanlawgroup.net
WD
HYUNDAI MOTOR AMERICA ATTORNEYS FOR PLAINTIFF,
F&F
(via overnight mail only) ANNA P. KING
mm
(via email only)
OT
XX BY OVERNIGHT MAIL/DELIVERY: I caused such envelope tobe delivered by hand to
Preview
oo Uh —s } KNIGHT LAW GROUP LLP Steve Mikhov (SBN 224676) 9 || Daniel Kalinowski (SBN 305087) . Te > 1801 Century Park East, Suite 2300 SUPERIOR COURT OF CALIFORNIA 3 || Los Angeles, CA 90067 COUNTY OF PLACER x Telephone: (310) 552-2250 DEC 18 ] Fax: (310) 552-7973 “ JAKE CHATTERS 5 EXECUTIVE OFFICER & CLERK By: C. Valian-Brown, Deputy 6 || Attorneys for Plaintiff, OG ANNA P. KING 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF PLACER 10 || ANNA P. KING, Case No. $CV0038637 RY t FAX , 11 Unlimited Jurisdiction Plaintiff, 12 PLAINTIFF’S OPPOSITION TO Vs. DEFENDANT HYUNDAI MOTOR 13 AMERICA’S MOTION TO COMPEL INSPECTION OF PLAINTIFFS’ _i | Sana ee i ia CMOOR: Seere ti AEC cae, ere d DOES ee 1 SANCTIONS $896.00; IN DECLARATION THE AMOUNT OF OF DANIEL through 10, inclusive, KALINOWSKI IN SUPPORT 16 THEREOF 17 Defendant. 18 Dept.: 40 ; ; Judge: Commissioner Michael A. Jacques 19 Hearing Date: January 2, 2018 0 Hearing Time: 8:30 a.m. Complaint Filed: October 28, 2016 21 Trial Date: April 23, 2018 22 23 24 25 26 27 28 i PLAINTIFF’S OPPOSITION TO DEFENDANT HYUNDAI MOTOR AMERICA’S MOTION TO COMPEL PRODUCTION OF PLAINTIFF’S VEHICLE FOR INSPECTION AND REQUESTS FOR SANCTIONS IN THE AMOUNT OF $896.00 = MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION NO In this action against Hyundai Motor America (“Defendant”) for violation of the Song- WD Beverly Act, Defendant has sought judicial intervention through this Motion to compel the BP inspection of Plaintiff Anna P. King’s (“Plaintiff”) vehicle despite the fact that said inspection A has never been refused and the parties have already agreed on a date of December 29, 2017, Dn rendering this Motion completely moot. Defendant’s continued insistence on burdening the VN Court with needless motions is inexplicable. Moreover, Defendant’s rush to the Court even 6&6 before dates were set is even more puzzling given that the trialis months away and the parties Oo had ample time to resolve thisminor scheduling conflict before the discovery cutoff. eS Plaintiff respectfully submits that this Motion is premature and moot and requests that it ik be either denied outright with prejudice or else continued until such time as the parties have had S&B an opportunity to work out the logistics without the Court’s intervention. If,after a reasonable a continuance, defendant can show Plaintiff has failed to cooperate to make her vehicle available Fe for inspection, the Motion can be reconsidered atthat time. But there isno benefit to considering a SE a motion where the requested relief (inspection of Plaintiff's vehicle) has never been disputed or BRR refused and the parties have already resolved the supposed issue. Furthermore, sanctions are entirely uncalled for where the Motion is procedurally . eR improper and Defendant has failed to act in good faith in working with Plaintiff to resolve this ee eC (non-)dispute without burdening the Court. NR II. ARGUMENT HS ND A. Defendant’s Motion isProcedurally Defective NM Defendant’s Notice of Motion is procedurally deficient because itfails to identify the kRaPeSB NM grounds upon which relief is sought. A Notice of Motion must state the grounds upon which the motion will be made, and must state in the opening paragraph the nature of the order and MN grounds for issuance of the order. (Code Civ. Proc. § 1010; Cal. Rules of Court rule 3.1110; see In re Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4" 495, 514.) While a discussion in the memorandum would not be grounds to save Defendant’s defective notice, N eu 1 PLAINTIFF’S OPPOSITION TO DEFENDANT HYUNDAI MOTOR AMERICA’S MOTION TO COMPEL PRODUCTION OF PLAINTIFF’S VEHICLE FOR INSPECTION AND REQUESTS FOR SANCTIONS IN THE AMOUNT OF $896.00 even the memorandum fails to cite applicable authority. Defendant cites to only California code of Civil Procedure sections 2017.010, H 2031.010, and 2031.310(b)(1). Defendant’s stated grounds for the motion at hand do not permit W Defendant’s requested relief. Code of Civil Procedure section 2017.010 permits any party to BR obtain discovery “regarding any matter ...that is relevant to the subject matter involved in the TA pending action.” (Code Civ. Proc. § 2017.010.) Section 2031.010 permits any party to make a DH demand “that any other party produce and permit the party making the demand... to inspect YN and to photograph, test, or sample any tangible things that are in the possession, custody, or CO control of the party on whom the demand ismade.” (Code Civ. Proc. § 2031.010(c).) Code of Oo Civil Procedure section 2031.300 authorizes the party demanding an inspection to move for an order compelling further response to the demand, provided that the moving party can show a reasonable attempt to resolve informally, including a declaration demonstrating a reasonable iets and good faith attempt at an informal resolution of each issue presented by the motion, pursuant to Code Civ. Proc., § 2016.040. (Code Civ. Proc. § 2031.310(b).) In her response, Plaintiff did not object to Defendant’s demand on the basis that the discovery sought was immaterial to the action under section 2017.010, or that the inspection was outside the scope of discovery under 2031.010. (Declaration of Daniel Kalinowski, “Kalinowski Dec.,” §3) Defendant itself even makes note of the absence of any other objections by Plaintiff. Moreover, Plaintiff did not refuse to submit to the inspection, and in ORD fact attempted to provide Defendant with dates on which to do so. (Kalinowski Dec., §3.) Accordingly, sections 2017.010 and 2031.010 have no significance to the issue at hand. BRD Furthermore, as discussed in more detail below, Defendant did not meet its obligation to RQ reasonably and in good faith resolve the issue before filing its motion pursuant to section SD 2016.040. Thus, Defendant’s Motion to Compel is procedurally defective and should be RN denied. NO B. Defendant has not Adequately Met and Conferred to Informally Resolve the Issues in this Motion, and the Court Should Deny this Motion Without 2 PLAINTIFF’S OPPOSITION TO DEFENDANT HYUNDAI MOTOR AMERICA’S MOTION TO COMPEL PRODUCTION OF PLAINTIFF’S VEHICLE FOR INSPECTION AND REQUESTS FOR SANCTIONS IN THE AMOUNT OF $896.00 Prejudice or Continue Because the Parties Have Already Established a Date for the Vehicle Inspection to Take Place bh A declaration under Code of Civil Procedure, section 2016.040 shall statefacts showing WY a reasonable and good faith attempt at an informal resolution of the issues presented by the be motion. (Code Civ. Proc. § 2016.040.) A determination of whether attempts atinformal resolution WN are adequate involves the consideration of the circumstances: “{t]he level of effort at informal DH resolution which satisfies the ‘reasonable and good faith attempt’ standard depends on the |: NSN circumstances... The history of the litigation, the nature of the interaction between counsel, the Co nature of the issues, the type and scope of discovery requested, the prospects for success and other Oo similar factors can be relevant.” (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431.) 10 Here, Defendant has not shown that ithas adequately met and conferred with Plaintiffs to 11 informally resolve the issues presented by the present Motion to Compel. Plaintiff indicated in 12 her response that she would provide a new availability for inspection, and thereafter attempted to 13 work with Defendant’s counsel to find adequate time to submit tothe demand. (Kalinowski Dec., 14 43, 4; Exh. B.) On November 30, 2017, Plaintiff’s counsel provided February 13, 2018 as a date 15 for the Vehicle Inspection to take place. (Kalinowski Dec., §4; Exh. B.) Defendant responded 16 only by demanding that any dates be in December. (Kalinowski Dec., §4; Exh. B.) On December 17 1, 2017, in an effort to work within Defendant’s narrow parameters, Plaintiff provided additional 18 dates of December 29, 2017 for the Vehicle Inspection to take place, and Defendant promptly 19 agreed. (Kalinowski Dec., 93, 4; Exh. C.) Vehicle inspections are, by their very nature, difficult 20 to arrange because they require coordination between Plaintiff's counsel, Defendant’s counsel, 21 Plaintiff's expert, Defendant’s expert and Plaintiff. Furthermore, Defendant has asked that 22 Plaintiff's deposition be taken before the vehicle inspection. Even with these complicated 23 scheduling issues, Plaintiff was able to find adate to produce the vehicle on December 29, 2017, 24 and Defendant confirmed. (Kalinowski Dec., 95; Exh. C.) 25 Defendant blithely claims that Plaintiff has had three months to provide dates for the 26 inspection, yet fails to mention that it requested that the inspection occur on a date following 27 Plaintiff's deposition, which is the subject of another motion to compel, adding yet another 28 3 PLAINTIFF’S OPPOSITION TO DEFENDANT HYUNDAI MOTOR AMERICA’S MOTION TO COMPEL PRODUCTION OF PLAINTIFF’S VEHICLE FOR INSPECTION AND REQUESTS FOR SANCTIONS IN THE AMOUNT OF $896.00 wrinkle to the logistics. Defendant also failsto point out that communications with Plaintiff's & requested dates for depositions and vehicle inspections for at least five cases (5),and in no way KH indicated that the present action was more pressing than the others, or that a date has already been WwW provided and accepted. BRB C. Monetary Sanctions are Inappropriate UW As mentioned above, Defendant’s Motion failed to comply with the meet and confer DA requirements of Code Civ. Proc., §2016.040. Given this noncompliance with the code, coupled ND with the Defendant’s minimal efforts to avoid the necessity of filing this Motion, monetary Oo sanctions are uncalled for. Code Civ. Proc. § 2025.410(g)(2) (sanctions shall not be assessed if Co “the court finds that the one subject to the sanction acted with substantial justification or that other ee circumstances make the imposition of the sanction unjust). Iii. CONCLUSION mom Defendant’s Motion should be denied outright because it is procedurally deficient, premature, and rendered moot by the fact that a date for Vehicle Inspection has been agreed to. For the same reasons, sanctions should be denied. DATED: December 19, 2017 KNIGHT LAW GROUP LLP j ; a ane ee a . a —— Steve Mikhov (SBN 224676) Daniel Kalinowski (SBN 305087) RN Attorneys for Plaintiff, ANNA P. KING RN KN HN we N 4 PLAINTIFF’S OPPOSITION TO DEFENDANT HYUNDAI MOTOR AMERICA’S MOTION TO COMPEL PRODUCTION OF PLAINTIFF’S VEHICLE FOR INSPECTION AND REQUESTS FOR SANCTIONS IN THE AMOUNT OF $896.00 DECLARATION OF DANIEL KALINOWSKI rH I,Daniel Kalinowski, declare as follows: HP 1. I am an attorney duly licensed to practice law before allof the courts of the State WD of California. Iam an associate at the law firm of Knight Law Group LLP, attorneys of record for PF Plaintiff ANNA P. KING (“Plaintiff”). I have personal knowledge of the following facts, and, if DH called to testify regarding those matters, I could and would competently testify thereto. NDR iz On August 28, 2017, Defendant HYUNDAI MOTOR AMERICA (“Defendant’ or “HMA”) served Plaintiff with a Demand for Vehicle Inspection, unilaterally scheduling a Oo vehicle inspection to take place on November 10, 2017. A true and correct copy of Defendant’s oC Demand for Vehicle Inspection is attached hereto as Exhibit A. ates 3. On November 2, 2017, Plaintiffs served Defendant with their objections to Defendant’s vehicle inspection, stating that Plaintiffs and their counsel were unavailable for the unilaterally-scheduled date, and indicating that Plaintiff would provide acceptable dates. 4, In an email correspondence dated November 28, 2017, Plaintiff provided i Defendant with dates of February 12, 2017 and February 13, 2017, for vehicle inspection and a deposition. Defendant responded with demand that the dates be in December, 2017. A true and correct copy of Defendant’s Demand for Vehicle Inspection isattached hereto as Exhibit B. i 5. On December 1, 2017, Plaintiff suggested dates of December 28, 2017 and December 29, 2017 for vehicle inspection and deposition. Defendant responded that itagreed to these dates, and confirmed them with Plaintiff. A true and correct copy of Defendant’s Demand for Vehicle Inspection isattached hereto as Exhibit C. RDN 6. On November 18, 2017, without discussing any alternative dates with Plaintiff, NY Defendant filed the present Notice of Motion and Motion to Compel the Vehicle Inspection of Plaintiff and for an Award of Sanctions. (“Motion to Compel”). BD NN I declare under penalty of perjury under the laws of the State of California that the foregoing istrue and correct. 5 PLAINTIFF’S OPPOSITION TO DEFENDANT HYUNDAI MOTOR AMERICA’S MOTION TO COMPEL PRODUCTION OF PLAINTIFF’S VEHICLE FOR INSPECTION AND REQUESTS FOR SANCTIONS IN THE AMOUNT OF $896.00 = Executed December 18, 2017, in Los Angeles, California. HH WY “ i BP Lew BZ ee RR Daniel Kalinowski (SBN 305087) DH NN Oo Co =s&keHES meet tm mm ak om PERGeS rm BR KN BRO BS KO BRO oS NO Oo oe 6 PLAINTIFF’S OPPOSITION TO DEFENDANT HYUNDAI MOTOR AMERICA’S MOTION TO COMPEL PRODUCTION OF PLAINTIFF’S VEHICLE FOR INSPECTION AND REQUESTS FOR SANCTIONS IN THE AMOUNT OF $896.00 EXHIBITA Sohey! Tahsildoost (Bar No. 271294) THETA LAW FIRM, LLP 15901 Hawthorne Blvd., Suite 270 Lawndale, CA 90260 Telephone: (424) 297-3103 Facsimile: (424) 286-2244 ~ Attorneys for defendant Hyundai Motor America A DD SUPERIOR COURT OF THE STATE OF CALIFORNIA NN COUNTY OF PLACER fo Co ANNA P. KING, Case No.: SCV0038637 gee” Neca” Neaqare” Sonar il Plaintiff, DEFENDANT HYUNDAI MOTOR AMERICA’S DEMAND FOR INSPECTION 12 vs. OF Seer PROPERTY eee” Seer 13 HYUNDAI MOTOR AMERICA, a Dept.: 40 California Corporation, and DOES 1 Judge: Commissioner Michael A. Jacques Nee” Soe” 14 through 10, inclusive, Neer 15 Defendants. Complaint Filed: October 28, 2016 Nese” Sse” Nee” Nema’ Smee” Smee” Nee” Noa” Trial Date: April 23, 2018 16 17 18 19 Nowe 20 PLEASE TAKE NOTICE that Hyundai Motor America demands that plaintiff produce 21 for inspection plaintiff's 2010 Hyundai Tucson, VIN KM8JU3ACXAU015808 and any parts, 22 equipment, and/or accessories purchased for, installed on, connected with, or deriving from said 23 vehicle, atFolsom Lake Hyundai, 12530 Auto Mall Cir, Folsom, CA 95630, telephone (916) 24 293-4760, on November 10, 2017 at 10:00 a.m. 25 The inspection will be for the purpose of evaluating, diagnosing, driving, operating, 26 measuring, photographing, videotaping and testing the vehicle atsaid designated location. The 27 inspection may include without limitation each of the following: 28 MAKING, ANNA\DISCOVERY\NTVIOl DOCX 1 DEFENDANT HYUNDAI MOTOR AMERICA’S DEMAND FOR INSPECTION OF PROPERTY 1. Inspecting the entire vehicle. Clearing and then testing for fault codes. MM WN Ss Recording vehicle data. So Ww Adding fuel or other fluidsas necessary. & Test driving the vehicle. SN A NSD (x Starting/stopping the engine. Removing and replacing any non-factory parts. 8. Removing and replacing components for testing purposes. F&F 9. Disassembling and reassembling components for testing purposes. Co 10. Temporarily installing factory parts or new parts, and then replacing the originals. ll 11. Connecting diagnostic tools. 12 12. Running diagnostic tests. 13 Said inspection will continue day-to-day, Sundays and holidays excluded, until 14 completed. 15 Dated: August 25, 2017 16 THETA LAW FIRM, LLP a , 17 18 SOHEYL TAHSILDOOST 19 Attorneys fordefendant Hyundai Motor America 20 21 22 23 24 25 26 27 28 MAKING, ANNA\DISCOVERYINTVIO1.DOCX 2 DEFENDANT HYUNDAI MOTOR AMERICA’S DEMAND FOR INSPECTION OF PROPERTY | PROOF OF SERVICE (Code Civ. Proc., § 1013a(3) Revised 5-1-88) I am over the age of 18, not a party tothis action, and employed inthe county where this mailing WN occurred. My business address is 15901 Hawthorne Blvd., Suite 270, Lawndale, CA 90260. On August 25, 2017, I served the following documents described as DEFENDANT HYUNDAI W MOTOR AMERICA’S DEMAND FOR INSPECTION OF PROPERTY on interested parties in this action by placing original/true copies thereof in sealed envelopes addressed as SF ollows: A Steve Mikhov Bryan Charles Altman Amy Morse The Altman Law Group DW Knight Law Group, LLP 6300 Wilshire Blvd., Suite 980 1801 Century Park East, Suite 2300 Los Angeles, CA 90048 nN Los Angeles, CA 90067 (323) 653-5581 Phone (310) 552-2250 Phone (323) 653-5542 Fax co (310) 552-7973 Fax oO [ Cc: 'Steven Correa’ ; Irene Reznik ; Holly Ashcraft ; Joel E.Elkins ; Christopher Urner Subject: Anna P. King v.HMA Soheyl, Our clientisavailable for deposition on February 12. Our Expert and our office are available for the vehicle inspection on February 13. Thanks, Roxane L'Yvonnet The Altman Law Group 6300 Wilshire Boulevard, Suite 980 Los Angeles, California 90048 Telephone: (323) 653-5581 Facsimile: (323) 653-5542 E-Mail: rlyvonnet@altmaniawgroup.net DO NOT read, copy or disseminate thiscommunication unless you are the intended addressee. This e-mail communication may contain confidential and/or privileged information intended only for the addressee. Ifyou have received thiscommunication in error,please callus (collect) immediately at (323) 653-5581 and ask to speak to the sender of the communication. Also, please e-mail the sender and notify the sender immediately that you have received the communication inerror. EXHIBIT C From: StevenCorrea To: Roxane L"Yvonnet; “SoheylTahsildoost® Ca: IreneReznik; HollyAshcraft; JoelE.Elkins; Christopher Urner Subject: RE:Anna P.Kingv.HMA Date: Wednesday,December 13,2017 3:23:28 PM Roxane, The 28°" and the 29"? work for our office, dates are confirmed. Thank you, Steven Correa, Office Manager Theta Law Firm, LLP 15901 Hawthorne Blvd. Suite 270 Lawndale, CA 90260 T 424.297.3103 F 424.286.2244 E scorrea@thetafirm.com W www.thetafirm.com CONFIDENTIAL COMMUNICATIONS This information is intended for use by the individuals or entity towhich itisaddressed, and may contain information that is privileged,confidential, and exempt from disclosure under applicable law. Ifthe reader of thismessage is not the intended recipient, or employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution, or copying of thiscommunication isstrictlyprohibited. Ifyou have received this communication inerror, please notifyus immediately by telephone and delete the material. From: Roxane L'Yvonnet [mailto:rlyyonnet@altmanlawgroup.net] Sent: Friday, December 1, 2017 2:46 PM To: Soheyl Tahsildoost Cc: 'Steven Correa’ ; Irene Reznik ; Holly Ashcraft ; Joel E. Elkins ; Christopher Urner Subject: RE: Anna P. King v.HMA Soheyl, We can do the deposition on 12/28 and the vehicle inspection on 12/29. Please confirm these dates work with your office. Thank you, Best From: Soheyl Tahsildoost [mailto:st@thetafirm.com] Sent: Thursday, November 30, 2017 6:49 PM To: Roxane L'Yvonnet Ce: Steven Correa’ ; Irene Reznik ; Holly Ashcraft ; Joel E.Elkins ; Christopher Urner Subject: RE: Anna P. King v. HMA Roxane, i'dlike to have dates in December. Our deadline foran MSJ isinthe first couple of weeks of January. |want to complete the plaintiff'sdeposition and vehicle inspection inDecember, unless you'll stipulate to move back the trialdate. Thanks, Soheyl Tahsildoost, Esq. Theta Law Firm, LLP 15901 Hawthorne Biva. Suite 270 Lawndale, CA 90260 T 424.297.3103 F 424.286.2244 W thetafirm.com CONFIDENTIAL COMMUNICATIONS This information isintended for use by the individuals or entity towhich itisaddressed, and may contain information that is privileged, confidential, and exempt from disclosure under applicable law. Ifthe reader of this message isnot the intended recipient,or employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution, or copying of thiscommunication isstrictlyprohibited. Ifyou have received this communication inerror, please notify us immediately by telephone and delete the material. From: Roxane L'Yvonnet [mailto:rlyvonnet@altmanlawgroup.net] Sent: Thursday, November 30, 2017 9:18 AM To: Soheyl Tahsildoost Ce: ‘Steven Correa’ ; Irene Reznik ; Holly Ashcraft ; Joel E.Elkins ; Christopher Urner Subject: Anna P. King v.HMA Soheyl, Our clientis available fordeposition on February 12. Our Expert and our office are available for the vehicle inspection on February 13. Thanks, Roxane L'Yvonnet The Altman Law Group 6300 Wilshire Boulevard, Suite 980 Los Angeles, California 90048 Telephone: (323) 653-5581 Facsimile: (323) 653-5542 E-Mail: rlyvonnet@altme DO NOT read, copy or disseminate thiscommunication unless you are the intended addressee. This e-mail communication may contain confidential and/or privileged information intended only for the addressee. Ifyou have received thiscommunication inerror, please callus (collect) immediately at (323) 653-5581 and ask to speak tothe sender of the communication. Also, please e-mail the sender and notify the sender immediately that you have received the communication inerror. PROOF OF SERVICE S&S NO (Code of Civil Procedure §1013a) 1am employed in the County of Los Angeles, State of California. I am over the age of 18 years and not a party to the within action. My business address is 1801 Century Park East, Suite WY 2300, Los Angeles, CA 90067. SH I served the foregoing document described as: A PLAINTIFF’S OPPOSITION TO DEFENDANT HYUNDAI MOTOR DH AMERICA’S MOTION TO COMPEL INSPECTION OF PLAINTIFFS’ NIN VEHICLE AND REQUEST FOR SANCTIONS IN THE AMOUNT OF $896.00; DECLARATION OF DANIEL KALINOWSKI IN SUPPORT THEREOF Co Said document was served on the interested parties in this action, by placing true copies oO thereof enclosed in sealed envelopes, with postage prepaid, addressed as follows: |S Soheyl Tahsildoost, Esq. Bryan C. Altman, Esq. le THETA LAW FIRM, LLP The Altman Law Group | 15901 Hawthorne Blvd., Suite 203 6300 Wilshire Blvd., Ste. 980 NP Lawndale, CA 90260 Los Angeles, CA 90048 ATTORNEYS FOR DEFENDANT, Email: bryan@altmanlawgroup.net WD HYUNDAI MOTOR AMERICA ATTORNEYS FOR PLAINTIFF, F&F (via overnight mail only) ANNA P. KING mm (via email only) OT XX BY OVERNIGHT MAIL/DELIVERY: I caused such envelope tobe delivered by hand to