Motion Compel

Cal. Super. - 6th Dist.March 3, 2020

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVID N. BARRY, ESQ. (SBN 219230) ELIZABETH QUINN, ESQ. (SBN 208919) E'ec"°"'°a"y F"ed ERIK WHITMAN, ESQ. (SBN 297397) by $”Pe”°’ CW” °f CA, THE BARRY LAW FIRM County of Santa Clara, 11845 w. Olympic Blvd, Suite 1270 on 1/28/2021 4:00 PM Los Angeles, CA 90064 , Reviewed By: Tunisia Turner Telephone: 310.684.5859 Case #20CV364578 Attorneys for Plaintiff, BRYAN THUERK SUPERIOR COURT 0F THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA BRYAN THUERK, an individual, Case No. 20CV364578 Plaintiff, PLAINTIFF’S NOTICE OF MOTION V. AND MOTION TO COMPEL DEFENDANT’S FURTHER RESPONSES TO REQUESTS FOR ADMISSION NOS. 2, 14, 15, 17-20, 22, 24, AND 31; KIA MOTORS AMERICA, INC, a MEMORANDUM 0F POINTS AND . . , AUTHORITIES; DECLARATION OF Cahfomla Corporatlon; and DOES 1 through ERIK WHITMAN, WITH EXHIBITS 20, inclusive, v [Concurrently Filed with CRC 3. 1345 Separate Statement ofltems in Dispute] Defendants. Date: 6'1 '21 gimtei 9:00am ep" Dept.19 Action Filed: March 3, 2020 Trial Date: None Assignedfor allpurposes to the Honorable Thang N. Barrett in Dept. 21 TO THE COURT, ALL PARTIES AND T0 THEIR ATTORNEYS 0F RECORD: PLEASE TAKE NOTICE that on 6-1 -21 , 2021 at 9:00 am. or as soon thereafter as counsel may be heard in Depaflmggt 2‘} 0f the above-entitled court located at 161 North First Street, San Jose, CA 951 13, Plaintiff Bryan Thuerk (“Plaintiff”) will move this Court for an Order compelling Defendant Kia Motors America, Inc. t0 provide verified, supplemental responses to Request for Admissions Nos. 2, 14, 15, 17-20, 22, 24, and 31. PLAINTIFF’S NOTICE 0F MOTION AND MOTION T0- 13-0MPEL DEFENDANT’S SUPPLEMENTAL RESPONSES TO REQUEST FOR ADMISSION NOS. 2, 14, 15, 17-20, 22, 24, AND 31; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ERIK WHITMAN, WITH EXHIBITS This motion is made pursuant t0 California Code osz'vil Procedure §§ 2033.010, 2033.030 ' and 2033.290 and 0n the grounds that Kia Motors America, Inc. has, without substantial justification failed t0 provide appropriate responses to Request Nos. 2, 14, 15, 17~20, 22, 24, and 31 to comply with the Code ofCivil Procedure. This motion is based 0n the attached Memorandum of Points and Authorities, the attached Declaration of Erik Whitman and the exhibits attached thereto, the supporting Separate Statement under Rule 3.1345 of the Rules of Court, the records on file with the Court, and upon such oral and \DOOVQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 documentary evidence as may be presented at the hearing of this motion. Date: January 28, 2021 THE BARRY LAW FIRM 5:354 1-K ' ffws’E/fgzm g.............m, By: DAVID N. BARRY, ESQ. ELIZABETH QUINN, ESQ. ERIK WHITMAN, ESQ. Attorneys for Plaintiff, BRYAN THUERK -2- PLAINTIFF’S NOTICE OF MOTION AND MOTION T0 COMPEL DEFENDANT’S SUPPLEMENTAL RESPONSES TO REQUEST FOR ADMISSION NOS. 2, l4, 15, 17-20, 22, 24, AND 31; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ERIK WHITMAN, WITH EXHIBITS “a 00 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This Song-Beverly Consumer Warranty Act (“Lemon Law”) lawsuit stems from Plaintiff Bryan Thuerk’s purchase of a 2019 Kia Stinger, VIN KNAEZSLA9K6051 1 10, (“Subject Vehicle” or “Vehicle”). The Vehicle was manufactured and warranted by Defendant Kia Motors America, Inc. (“KMA”). Along with the purchase 0f the Vehicle, Defendant expressly warranted to fix or repair any defects in workmanship or materials for five (5) years 0r 60,000 miles. Shortly after purchase, Plaintiff began to experience significant problems with the Vehicle. As a result of persistent manufacturing defects that KMA’S authorized dealerships were unable to repair, and KMA’S failure to timely investigate 0r meaningfully respond to Plaintiff’s concerns in compliance with the Song-Beverly Act, Plaintiff was left with no Viable options but to file suit. Plaintiff’s suit alleges breach of warranty claims under the Song-Beverly Consumer Warranfy Act and requests that the Subject Vehicle be repurchased, that Plaintiff be awarded appropriate damages and attorneys’ fees as allowed by the statute and requests a civil penalty in an amount not to exceed two times the amount of Plaintiff s actual damages as allowed by the statute. II. NATURE OF THE DISPUTE AND RELIEF SOUGHT Defendant failed to provide Code-compliant substantive responses to Plaintiff’s Requests for Admission Nos. 2, 14, 15, 17-20, 22, 24, and 31 in Defendant’s discovery responses dated April 24, 2020. A party responding to a request for admission must either: admit, deny or state that it is unable to admit or deny. The answer must'be “as complete and straightforward” as the information available reasonably permits and must “[a]dmit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party.” CCP § 2033.220 (a), (b)(l). In this case, Kia Motors America, Inc. did neither. Rather, KMA evaded the Requests. This is a misuse of the discovery process that the Code ofCiviZ Procedure prohibits and thus requires the Court’s intervention. Accordingly, Plaintiff seeks an Order compelling KMA to provide verified, further responses to Requests for Admission Nos. 2, 14, 15, 17-20, 22, 24, and 31. // -3- PLAINTIFF’S NOTICE 0F MOTION AND MOTION T0 COMPEL DEFENDANT’S SUPPLEMENTAL RESPONSES TO REQUEST FOR ADMISSION NOS. 2, 14, 15, 17-20, 22, 24, AND 31; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ERIK WHITMAN, WITH EXHIBITS \OOOQO‘x 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. THIS MOTION IS TIMELY AND PROPERLY BEFORE THE COURT. Plaintiff‘s motion is timely. Plaintiff received Defendant’s unverified responses to Plaintiff’s Requests for Admission, Set One, 0n July 16, 2020, as indicated on the proof 0f service for KMA’S responses. Declaration of Erik Whitman (“Whitman Decl.”), Exhibit 2. However, verifications for these responses were absent and were never received. On November 10, 2020, Defendant served unverified supplemental responses to Plaintiff‘s discovery, as indicated on the proof 0f service for KMA’S supplemental responses. See Exhibit 2. On December 9, 2020, Defendant KMA mailed the corresponding verifications t0 their supplemental responses. Pursuant to Appleton v. Superior Court (1988) 206 Ca1.App.3d 632, 636 and amended section 2030.300 (c) 0f the California Code osz'vil Procedure, KMA’s unverified responses are legally ineffective until the verifications are provided. Thus, the 45-day deadline in which to file a motion to compel further responses is not triggered until verifications are served.‘ As such, this motion is timely filed. IV. RELEVANT PROCEDURAL HISTORY AND BASIS FOR RELIEF SOUGHT Plaintiff served Defendant KMA With a set of Requests for Admission 0n June 11, 2020. See Exhibit “1.” Defendant KMA served its discovery responses by electronic mail on July 16, 2020. See Exhibit “2.” However, these responses were not verified. On July 30, 2020, Plaintiff sent Defendant KMA a meet and confer letter with legal authorities detailing various deficiencies with Defendant’s discovery responses, including those at issue in this Motion, and requested that Defendant KMA verify their responses. Plaintiff asked Defendant t0 provide further responses to select discovery items that were not responsive and/or incomplete within fourteen (14) days of the date of the letter and t0 advise Plaintiff if additional time was needed, which would be agreeable to Plaintiff if Defendant provided a reciprocal extension on Plaintiff s motion filing deadline. See Exhibit “3.” Plaintiff received no response. On September 29, 2020, Plaintiff sent a follow up meet and confer correspondence. See Exhibit “4.” Again, KMA did not respond. 1 In light oprpleton v. Superior Court, supra, this important clarification to the Discovery Act was the result of AB 1183 which amended Code 0f Civil Procedure sections 2030.300(c), 2031.310(c), and 2033.290(c) to reflect that motions to compel further responses from interrogatories, inspection demands, or requests for admissions d0 not need t0 be filed until 45 days afier verified responses are scfl'v‘ed. AB 1183 became law 0n June 24, 2013. PLAINTIFF’S NOTICE 0F MOTION AND MOTION TO COMPEL DEFENDANT’S SUPPLEMENTAL RESPONSES TO REQUEST FOR ADMISSION NOS. 2, 14, 15, 17-20, 22, 24, AND 31; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ERIK WHITMAN, WITH EXHIBITS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On November 10, 2020, Defendant KMA served unverified further responses t0 written discovery. See, Exhibit “5.” On December 9, 2020, Defendant KMA mailed the verifications t0 their further responses to written discovery. See, Exhibit “6.” On January 4, 2021, Plaintiff served a meet and confer letter, addressing the deficiencies in KMA’S responses, and supplemental responses, to Plaintiff’s written discovery. See, Exhibit “7.” No response was received. As of this date, Defendant has refused t0 provide further Code-compliant responses t0 the Interrogatories at issue in this Motion. Thus, Plaintiff was forced to file the instant Motion in order to protect his statutory motion deadline and t0 preserve and enforce his discovery rights. Nevertheless, in an ongoing effort to resolve these issues informally and without court intervention, Plaintiff will take this Motion off calendar if Defendant KMA provides further verified responses to the items at issue sufficiently in advance of the hearing to allow Plaintiff’s meaningful review. V. KIA MOTORS AMERICA. INC. SHOULD BE ORDERED TO PROVIDE FURTHER RESPONSES TO RE UESTS FOR ADMISSION NOS. 2 l4 15 17-20 22, 24, AND 31. California Code osz'vz'l Procedure § 2033.290 provides in pertinent part: (a) On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of'the following apply: (1) An answer to a particular request is evasive 0r incomplete. (2) An objection to a particular request is without merit or too general. * * * As fully detailed in Plaintiff’s accompanying Rule 3.1345 Separate Statement, Defendant Kia Motors America, Inc.’s responses to Request Nos. 2, 14, 15, 17-20, 22, 24, and 31. The responses provided do not comply With the requirements of the Code and are without substantial -5- PLAINTIFF’S NOTICE 0F MOTION AND MOTION T0 COMPEL DEFENDANT’S SUPPLEMENTAL RESPONSES TO REQUEST FOR ADMISSION NOS. 2, 14, 15, 17-20, 22, 24, AND 31; MEMORANDUM 0F POINTS AND AUTHORITIES; DECLARATION 0F ERIK WHITMAN, WITH EXHIBITS \DOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 justification. Defendant Kia Motors America, Inc. should therefore be required t0 provide supplemental, verified responses that admit 0r deny the matters prasented. VI. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that this Court issue an Order compelling Defendant Kia Motors America, Inc. t0 provide verified, supplemental responses t0 Requests for Admission Nos. 2, 14, 15, 17-20, 22, 24, and 31, as demonstrated in the supporting Separate Statement. Date: January 28, 2021 THE BARRY LAW FIRM 612927 )4..........m DAVID N. BARRY, ESQ. ELIZABETH QUINN, ESQ. ERIK WHITMAN, ESQ. Attorneys for Plaintiff, BRYAN THUERK By: -6- PLAINTIFF’S NOTICE 0F MOTION AND MOTION T0 COMPEL DEFENDANT’S SUPPLEMENTAL RESPONSES T0 REQUEST FOR ADMISSION Nos. 2, 14, 15, 17-20, 22, 24, AND 31; MEMORANDUM 0F POINTS AND AUTHORITIES; DECLARATION 0F ERIK WHITMAN, WITH EXHIBITS DECLARATION ION \DOOQO‘x 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION 0F ERIK WHITMAN I, Erik Whitman, declare as follows: 1. I am an attorney duly licensed t0 practice in all of the courts of California and I am an associate with The Barry Law Firm, counsel of record for the Plaintiff, Bryan Thuerk. I make this Declaration in support of Plaintiff‘s Motion t0 Compel Defendant KMA’S Further Responses to its responses to Plaintiff‘s Request for Admissions No. 2, 14, 15, 17-20, 22, 24, and 31 which seeks information important to Plaintiff” s preparation 0f this case for trial. 2. I have reviewed the entire file in this case, and I am therefore familiar with all activities and all proceedings in this case. Accordingly, if called upon as a witness, I could and would competently testify t0 the following based upon my own personal knowledge. 3. This is a lemon law case arising from Plaintiff’s purchase of a 2019 Kia Stinger, VIN KNAE25LA9K6051110. Shortly after purchase, Plaintiff began to experience significant problems with the Vehicle. As a result of persistent manufacturing defects that KMA’S authorized dealerships were unable to repair, and KMA’s failure to timely investigate 0r meaningfully respond to Plaintiff’s concerns in compliance with the Song-Beverly Act, Plaintiff was left With n0 Viable options but t0 file suit. Plaintiff’s lawsuit alleges breach of warranty claims under the Song- Beverly Consumer Warranty Act, and requests that the Subject Vehicle be repurchased, and that Plaintiff be awarded appropriate damages and attorneys’ fees as allowed by statute. Plaintiff also seeks a statutory civil penalty for Defendant KMA’s bad faith failure t0 repurchase Plaintiffs vehicle as required by the Song-Beverly Consumer Warranty Act. 4. On June 11, 2020 my office served Defendant with a set 0f Requests for Admission, See, EXHIBIT 1. 5. Defendant served unverified responses by electronic mail on July 16, 2020. See, EXHIBIT 2. 6. On July 30, 2020, 0n behalf 0f Plaintiff, my office sent Defendant KMA a meet and confer letter with legal authorities detailing various deficiencies With Defendant’s discovery responses, including those at issue in this Motion. The letter asked Defendant to provide further responses t0 select discovery items that were not responsive and/or incomplete within fourteen (14) _7_ PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT’S SUPPLEMENTAL RESPONSES TO REQUEST FOR ADMISSION NOS. 2, l4, 15, 17-20, 22, 24, AND 31; MEMORANDUM 0F POINTS AND AUTHORITIES; DECLARATION OF ERIK WHITMAN, WITH EXHIBITS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 days of the date 0f the letter and t0 advise our office if additional time was needed, which would be agreeable if Defendant provided a reciprocal extension on Plaintiff’s motion filing deadline. The letter also asked Defendant KMA to provide verifications to the responses. Attached as Exhibit “3” is a true and correct copy 0f Plaintiff’s meet and confer letter. No response correspondence was received from Defendant KMA. See, EXHIBIT 3. 7. On September 29, 2020, my office followed up with a second meet and confer letter, requesting supplemental responses, and verifications. See, EXHIBIT 4. 8. On November 10, 2020, Defendant KMA served unverified further responses to written discovery. See, EXHIBIT 5. 9. On December 9, 2020, Defendant mailed the verifications t0 their further responses to written discovery. See, EXHIBIT 6. 10. On January 4, 2021, I drafted and served a meet and confer letter, addressing the deficiencies in KMA’S responses, and supplemental responses, to Plaintiff’s discovery. See, EXHIBIT 7. 11. To date, Defendant has not replied to my meet and confer and has utterly failed to substantively meet and confer. 12. KMA has yet to produce any privilege log or proposed stipulated protective order as requested by Plaintiff. 13. As of this Date, Defendant has refused to provide Code-compliant amended responses to the Requests for Admission at issue in this Motion. Thus, Plaintiff was forced to file the instant Motion in order to protect his statutory motion deadline and to preserve and enforce his discovery rights. /// /// /// /// /// /// -8- PLAINTIFF’S NOTICE 0F MOTION AND MOTION T0 COMPEL DEFENDANT’S SUPPLEMENTAL RESPONSES TO REQUEST FOR ADMISSION NOS. 2, 14, 15, 17-20, 22, 24, AND 31; MEMORANDUM 0F POINTS AND AUTHORITIES; DECLARATION OF ERIK WHITMAN, WITH EXHIBITS A \OOOQO‘xUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14. On behalf 0f Plaintiff, I will gladly take this Motion off calendar if Defendant provides further verified responses as requested at least twenty days in advance of the hearing on this Motion t0 allow scheduling of meaningful review. I declare under penalty of perjury under the laws of the State 0f California that foregoing is true and correct. Executed this 28th day of January 2021 at Los Angeles, California. 57/“ wafifg ~ W Erik Whitman -9- PLAINTIFF’S NOTICE 0F MOTION AND MOTION T0 COMPEL DEFENDANT’S SUPPLEMENTAL RESPONSES T0 REQUEST FOR ADMISSION Nos. 2, 14, 15, 17-20, 22, 24, AND 31; MEMORANDUM 0F POINTS AND AUTHORITIES; DECLARATION 0F ERIK WHITMAN, WITH EXHIBITS EXHIBIT 1 T ~59) KOOOQO‘xUl DAVID N. BARRY, ESQ. (SBN 219230) THE BARRY LAW FIRM 11845 W. Olympic Blvd, Suite 1270 Los Angeles, CA 90064 Telephone: 310.684.5859 Facsimile: 310.862.4539 Attorney for Plaintiff, BRYAN THUERK SUPERIOR COURT OF THE STATE 0F CALIFORNIA FOR THE COUNTY OF SANTA CLARA -- DOWNTOWN SUPERIOR COURT BRYAN THUERK, an individual; Cage N0, 20cV364578 PLAINTIFF’S REQUESTS FOR Plaintiff, ADMISSION TO DEFENDANT KIA MOTORS AMERICA, INC, SET ONE; v. DECLARATION 0F DAVID N. BARRY, ESQ., FOR ADDITIONAL DISCOVERY KIA MOTORS AMERICA, INC., A , , , Action Filed: March 3, 2020 Cahforma Corporanon; and DOES 1 through Trial Date: None 20» inCIUSiVea Assignedfor allpurposes to the Hon. Thang M Barrett Defendants. in Dept. 2] PROPOUNDING PARTY: PlaintiffBRYAN THUERK RESPONDING PARTY: Defendant KIA MOTORS AMERICA, INC. SET NUMBER: One (1) T0 DEFENDANT, KIA MOTORS AMERICA, INC. AND THEIR ATTORNEY OF RECORD: /// i /// /// -1 - PLAINTIFF’S REQUESTS FOR ADMISSION T0 DEFENDANT KIA MOTORS AMERICA, INC, SET ONE; DECLARATION 0F DAVID N. BARRY, ESQ, FOR ADDITIONAL DISCOVERY NGUI-bUJN PLEASE TAKE NOTICE that Plaintiff, BRYAN THUERK, hereby requests that Defendant, KIA MOTORS AMERICA, INC, admit within thirty (30) days after service 0f this Request for Admissions (Set One), that each 0f the following facts is true. PLEASE NOTE: If you fail t0 comply with the provisions 0f section 2033.010 et seq. 0f the Code 0f Civil Procedure with respect to this Request for Admissions, each of the matters of which an admission is requested will be deemed admitted. A11 responses must be accompanied by a verification signed by you under oath. REQUEST FOR ADMISSION 1: Plaintiff purchased the SUBJECT VEHICLE. ("SUBJECT VEHICLE" shall refer to the motor vehicle that is the subject of this lawsuit as identified in the Plaintiff’s Complaint filed in this action.) REQUEST FOR ADMISSION}; The SUBJECT VEHICLE was a new motor vehicle for purposes 0f the Song-Beverly Warranty Act. REQUEST FOR ADMISSION 3: In connection with the purchase 0f the SUBJECT VEHICLE, Defendant KIA MOTORS AMERICA, INC. gave a written warranty concerning the vehicle. REQUEST FOR ADMISSION 4: The SUBJECT VEHICLE contained a NONCONFORMITY' that substantially impaired the use, value, 0r safety 0f the SUBJECT VEHICLE t0 the Plaintiff. (The term "NONCONFORMITY" as used in these interrogatories, shall refer t0 each nonconformity in which subsiantialiy impaifs the use, value, 0r safety 0f the vehicle.) REQUEST FOR ADMISSION 5: Upon discovery of the NONCONPORMITY in the SUBJECT VEHICLE, Plaintiff notified the Defendant 0f the need for the repair 0f the NONCONFORMITY. /// /// -2- PLAINTIFF’S REQUESTS FOR ADMISSION T0 DEFENDANT KIA MOTORS AMERICA, 1NC., SET ONE; DECLARATION 0F DAVID N. BARRY, ESQ, FOR ADDITIONAL DISCOVERY CDKOOOQQ p.‘ 11 12 13 14 15 16 17 18 19 2O 21 2'2 23 24 26 27 28 REQUEST FOR ADMISSION 6: Upon discovery 0f the NONCONFORMITY in the SUBJECT VEHICLE: Plaintiff delivered the SUBJECT VEHICLE to Defendants or their authorized repair facilities for repair. REQUEST FOR ADMISSION 7: Defendant was given a reasonable number of attempts to conform the SUBJECT VEHICLE t0 the applicable express warranties. REQUEST FOR ADMISSION 8: Defendant was unable t0 repair the NONCONFORMITY in the SUBJECT VEHICLE after a reasonable number 0f attempts. REQUEST FOR ADMISSION 9: Defendant was aware of its restitution or replacement obligations under the Song-Beverly Warranty Act. REQUEST FOR ADMISSION 10: Defendant did not promptly replace the SUBJECT VEHICLE. REQUEST FOR ADMISSION 11: Defendant did not promptly refund. the purchase price less any amount directly attributable to the use by the Plaintiff before discovery of the NONCONFORMITY. REQUEST FOR ADMISSION 12: Plaintiff incurred damages as a result of the Defendant’s conduct. REQUEST FOR ADMISSION l3: Plaintiff contacted Defendant regarding their vehicle. REQUEST FOR ADMiSSION 14: Defendant conducted an investigation and/or inquiry into whether Plaintiff’s vehicle should be repurchased pursuant t0 The Song-Beverly Warranty Act as a result of this contact by Plaintiff. REQUEST FOR ADMISSION 15: Defendant is aware 0f its obligations as a manufacturer under The Song-Beverly Warranty Act. /// /// -3- PLAINTIFF’S REQUESTS FOR ADMISSION T0 DEFENDANT KIA MOTORS AMERICA, INC, SET ONE; DECLARATION 0F DAVID N. BARRY, ESQ, FOR ADDITIONAL DISCOVERY #UJM \OOOQONUI REQUEST FOR ADMISSION 16: Defendant does not have a qualified dispute resolution process that conforms with Civil Code § 1973.22. REQUEST FOR ADMISSION 17: Defendant has never noted any evidence 0f misuse 0r abuse of the SUBJECT VEHICLE by Plaintiff. REQUEST FOR ADMISSION 18: Defendant’s service file contains n0 notations involving suspected misuse or abuse 0f the SUBJECT VEHICLE by Plaintiff. REQUEST FOR ADMISSION 19: Defendants are currently unaware 0f any evidence of misuse or abuse 0f the SUBJECT VEHICLE by the Plaintiff. REQUEST FOR ADMISSION g9; Plaintiff has never caused damage t0 the SUBJECT VEHICLE by misusing or abusing it. REQUEST FOR ADMISSION 2;; The SUBJECT VEHICLE has been out 0f service by reason of repair of the NONCONFORMITY by YOU for a cumulative total of more than 30 calendar days since delivery 0f the vehicle to Plaintiff. REQUEST FOR ADMISSION}; The Song-Beverly Warranty Act does not require a Consumer t0 specifically request either a repurchase 0r a replacement in order to trigger KIA MOTORS AMERICA, INC.’s obligations T17 under Song-Beverly Consumer w REQUEST FOR ADMISSION 23: KIA MOTORS AMERICA, INC. will only investigate whether a vehicle should be repurchased 0r arranty AC1. replaced if a customer specifically requests that their vehicle be repurchased 0r replaced. REQUEST FOR ADMISSION 24: Plaintiff is defined as a qualifying CONSUMER as defined for purposes of the Song-Beverly Warranty Act. -4- PLAINTIFF’S REQUESTS FOR ADMISSION T0 DEFENDANT KIA MOTORS AMERICA, INC, SET ONE; DECLARATION OF DAVID N. BARRY, ESQ, FOR ADDITIONAL DISCOVERY wooflO‘x 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REQUEST FOR ADMISSION g_5_; The SUBJECT VEHICLE had warranty repairs performed during the applicable Implied Warranty as defined by Civil Code §1791.1. REQUEST FOR ADMISSION 2Q Admit that Stevens Creek Kia, located at 3566 Stevens Creek Blvd, San Jose, CA 95117, is YOUR agent for purposes of performing warranty repairs on KIA MOTORS AMERICA, INC. vehicles, including the SUBJECT VEHICLE. REQUEST FOR ADMISSION 27: Admit that Winn Kia 0f Fremont, located at 5633 John Muir D12, Newark, CA 94560, is YOUR agent for purposes 0f performing warranty repairs 0n KIA MOTORS AMERICA, INC. vehicles, including the SUBJECT VEHICLE. REQUEST FOR ADMISSIONE Admit that the sunroof rattling noise concern for which Plaintiff presented the SUBJECT VEHICLE at Stevens Creek Kia on August 26, 2019 constituted a substantial impairment of use. REQUEST FOR ADMISSION _2__8; Admit that the sunroof rattling noise concern for which Plaintiff presented the SUBJECT VEHICLE at Stevens Creek Kia on August 26, 2019 constituted a substantial impairment of value. REQUEST FOR ADMISSION 22; Admit that the sunroof rattling noise concern for which Plaintiff presented the SUBJECT VEHICLE at Stevens Creek Kia on August 26, 2019 constituted a substantial impairment of safety. REQUEST FOR ADMISSION 30: Admit that the sunroof rattling noise concern for which Plaintiff presented the SUBJECT VEHICLE at Stevens Creek Kia on September 13, 2019 constituted a substantial impairment of use. REQUEST FOR ADMISSION 31: Admit‘ that the sunroof rattling noise concern for Which Plaintiff presented the SUBJECT VEHICLE Lat Stevens Creek Kia on September 13, 2019 constituted a substantial impairment of value. -5- PLAINTIFF’S REQUESTS FOR ADMISSION TO DEFENDANT KIA MOTORS AMERICA, INC, SET ONE; DECLARATION OF DAVID N. BARRY, ESQ., FOR ADDITIONAL DISCOVERY Ul-bUJN \OOONON 10 11 12 13 14 15 16 17 18 19 20 21 22 24 25 26 27 28 REQUEST FOR ADMISSION 40: Admit that the sunroof rattling noise concern for which Plaintiff presented the SUBJECT VEHICLE at Winn Kia of Fremont 0n January 13, 2020 constituted a substantial impairment of value. REQUEST FOR ADMISSION 41: Admit that the sunroof rattling noise concern for Which Plaintiff presented the SUBJECT VEHICLE at Winn Kia of Fremont 0n January 13, 2020 constituted a substantial impairment 0f safety. REQUEST FOR ADMISSION 42_: Admit that the trunk rattling noise concern for Which Plaintiff presented the SUBJECT VEHICLE at Winn Kia 0f Fremont 0n January 13, 2020 constituted a substantial impairment 0f use. V RESQUEST FOR ADMISSION 43: Admit that the trunk rattling noise concern for which Plaintiff presented the SUBJECT VEHICLE at Winn Kia of Fremont on January 13, 2020 constituted a substantial impairment of value. REQUEST FOR ADMISSION 44: Admit that the trunk rattling noise concern for which Plaintiff presented the SUBJECT VEHICLE at Winn Kia of Fremont on January 13, 2020 constituted a substantial impairment of safety. \ \ . Date: June 11, 2020 THE ‘ RRY LAW FIRM Bygtg \‘x W DAVID NfiRRY, ESQ. K Attorney for Plaintiff, BRYAN THUERK -7- PLAINTIFF’S REQUESTS FOR ADMISSION T0 DEFENDANT KIA MOTORS AMERICA, INC, SET ONE; DECLARATION OF DAVID N. BARRY, ESQ, FOR ADDITIONAL DISCOVERY '10 11 12 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION 0F DAVID N. BARRY 1. I am an attorney at law duly licensed t0 practice before all the Courts 0f the State 0f California. I am the attorney for PLAINTIFF, BRYAN THUERK in this matter. 2. I am propounding t0 DEFENDANT, KIA MOTORS AMERICA, INC. the attached set of requests for admission. 3. This set of requests for admission will cause the total number 0f requests propounded t0 the party to whom they are directed to exceed the number 0f requests permitted by Section §2033.030 of the California Code of Civil Procedure. 4. I have not previously propounded any requests for admission to this party. 5. This set 0f requests for admission contains a total of 44 requests. 6. I am familiar with the issues and the previous discovery conducted by all of the parties in the case. 7. I have personally examined each of the questions in this set of requests for admission. 8. This number 0f questions is warranted under California Code of Civil Procedure Section §2033.040(a)(1) and (3). 9. None of the questions in this set 0f requests is being prOpounded for any improper purpose, such as to harass the party, or the attorney for the party, to whom it is directed, or t0 cause unnecessary delay or needless increase in the cost 0f litigation. I declare under penalty of perjury under the laws f the State of California that the foregoing is true and correct. Executed on the 11th of June 2020 in L05 Angeieg, Caliform . I '\ w” Dkififi {I 13m DECLARANT " -3- PLAINTIFF’S REQUESTS FOR ADMISSION T0 DEFENDANT KIA MOTORS AMERICA, INC, SET ONE; DECLARATION 0F DAVID N. BARRY, ESQ, FOR ADDITIONAL DISCOVERY UI-bUJN \DOOQO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA COUNTY OF SANTA CLARA THUERK V. KIA MOTORS AMERICA, INC. CASE # 20CV364578 I am employed in the County of Los Angeles, State of California. I am over the age 0f eighteen (1 8) years and not a party to the within action; my business address is: 11845 W. Olympic Boulevard, Suite 1270, Los Angeles, CA 90064. On June 11, 2020, I served the following described as: PLAINTIFF BRYAN THUERK’S REQUESTS FOR ADMISSION WITH DECLARATION OF DAVID N. BARRY, ESQ.; REQUEST FOR PRODUCTION OF DOCUMENTS; SPECIAL INTERROGATORIES WITH DECLARATION OF DAVID N. BARRY, ESQ.; FORM INTERROGATORIES TO DEFENDANT KIA MOTORS AMERICA, INC. Service was made in the below ascribed manner, 0n the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed to: PLEASE SEE ATTACHED SERVICE LIST [X] (MAIL) I am "readily familiar" with the legal department’s practice for collection and processing 0f correspondence for mailing. It is deposited with the U.S. postal service on that same day in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit. [] (OVERNIGHT DELIVERY MAIL) I caused the above described document t0 be served on the interested parties noted below by GSO Delivery Service in an envelope 0r package designated by the express service carrier in a facility which is deposited with the GSO Delivery Service in our building on the same day, in the ordinary course of business with delivery fees paid or provided for. [] (PERSONAL SERVICE) I cau ed the above described document t0 be personally served on the interested parties noted below. [X] (BY ELECTRONIC SERVICE) I caused such document to be delivered by electronic transmission t0 the addresses and offices of the addressee listed on the Service List. [X] (STATE) I declare under penalty 0f perjury under the laws 0f the State of California that the above is true and correct. Executed 0n the 11th 0f June 2020, at Los Angeles, California. ‘ '3 ww o c «ii I iigfifx wfl ,‘nrv'\‘ {i {grit} >Jazmme Damels f €34 a ‘é vii ~~si714-wfl" NAME ' SIGNATURE PROOF OF SERVICE \OOO\JO\{J1-PUJ[\)+-A N N N N N [Q N N [\g H L-A r-A b-a >--d r-A r-l p-a p-a r-A 00 fl ON Ur -b U) N H O \D 00 fl ON LII A U) [\J H O SERVICE LIST THUERK V. KIA MOTORS AMERICA, INC. CASE # 20CV364578 Danielle N. Duarte, Esq. danielle@lehrmanlawgroup.com Lehrman Law Group 12121 Wilshire Blvd, Suite 1300 Los Angeles, CA 90025 CC: klehrman@lehrmanlawgroup.com dvillegas@lehxmanlawgroup.com Attorneys for Defendant, KIA MOTORS AMERICA, INC. PROOF OF SERVICE EXHIBIT 2 I \OOOflmUl-PUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEHRMAN LAW GROUP KATE S. LEHRMAN [Bar No. 123050] JACQUELINE BRUCE CHINERY [Bar N0. 187544] DANIELLE N. DUARTE [Bar No. 308402] 12 1 21 Wilshire Boulevard Suite 1300 Los Angeles, CA 90025 (310) 917-4500 (310) 917-5677 (FAX) Attorneys for Defendant SUBARU OF AMERICA, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA BRYAN THUERK, an individual, ) Case No. 2OCV364578 ) [Filedz March 3, 2020] Plaintiff, ) ) Hon. Thang M. Barrett V. ) Dept. 21 ) KIA MOTORS AMERICA, INC, a ) California Corporation; and DOES 1 ) DEFENDANT KIA MOTORS AMERICA, through 20, inclusive, ) INC.’S RESPONSES TO PLAINTIFF’S ) REQUEST FOR ADMISSIONS, SET ONE Defendants. ) ) § ) DISCOVERY CUT-OFF : NONE ) MOTION CUT-OFF: NONE ) TRIAL DATE: NONE PROPOUNDING PARTY : PlaintiffBRIAN THUERK RESPONDING PARTY : Defendant KIA MOTORS AMERICA, INC. SET NO. : ONE Defendant Kia Motors America, Inc. (“KMA”) hereby responds to Plaintiff s Request for Admissions, Set N0. One. These responses are made subject to the General Objections and any specific objection contained within an individual response. 301 .224.DND - 00498108Docx 1 20CV364578 DEFENDANT KIA MOTORS AMERICA, INC.’S RESPONSES TO PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE AWN \OOOQQU] 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 So far as KMA is aware, according to the information available to KMA at the present time, these responses are complete and correct. KMA reserves the right t0 object to future discovery on the same or related matters and does not waive any objection by providing the information reflected in these responses. KMA further reserves the right to object to the admissibility 0f any of these responses 0r the documents produced or related matters, in whole 0r in part, at trial in this action, 0n any grounds, including, but not limited t0, materiality, relevance and privilege. PRELIMINARY STATEMENT AND GENERAL OBJECTIONS The subject of Plaintiff’s Complaint is a 2019 Kia Stinger, VIN: KNAEZSLA9K6051 1 10, Which was purchased/leased on or about April 8, 2019. KMA did not design or manufacture the subject vehicle. KMA objects to Plaintiff s request to the extent they seek information concerning products other than the subj ect product in suit, vehicle components, systems or characteristics that are not described or identified with reasonable particularity in the Complaint and which are not the subject of Plaintiff” s defect allegations. Such requests are overly broad, unduly burdensome and seek information which is not relevant or reasonably calculated t0 lead to the discovery of admissible evidence in this case. KMA obj ects to Plaintiff’s request to the extent they may call for the production of proprietary information, trade secrets or other confidential business and commercial information, public dissemination of which would place KMA at a commercial disadvantage. KMA objects t0 Plaintiff s request to the extent these requests can be interpreted to seek information protected by the attorney/client privilege, the consulting expert privilege or the work product doctrine. In responding to these requests, KMA assumes Plaintiff does not seek information or documents protected by the attorney/client privilege and/or work product doctrine, and KMA hereby preserves all such privileges. KMA obj ects to the instructions and definitions in Plaintiff s Requests for Admission to the extent they are overly broad, unduly burdensome and. seek to impose duties or requirements beyond those required by the Code of Civil Procedure. 301.224.DND - 00498108.Docx 2 20CV364578 DEFENDANT KIA MOTORS AMERICA, INC.’S RESPONSES TO PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE \OOOQQUIhUJNh-t NNNNNNNNNHHHp-AHHp-Ar-tp-Ar-t WQCNM-kwNHOKOWflmM-PWNHO Finally, neither the failure to specifically mention a general objection in any response nor the specification 0f any other 0bjecti0n shall be deemed a waiver of any objections to that discovery request. Without waiving the foregoing obj ections, and incorporating them into each of the following requests, KMA responds to Plaintiff’s Requests for Admission, Set No. One, as follows: RESPONSE TO REQUEST FOR ADMISSION REQUEST FOR ADMISSIONS NO. 1: Plaintiffpurchased the SUBJECT VEHICLE. (“SUBJECT VEHICLE” shall refer to the motor vehicle that is the subject 0f this lawsuit as identified in Plaintiff’ s Complaint filed in this action.) RESPONSE: KMA obj ects to this request as follows: 1. This Request is not full and complete in and 0f itself. 2. KMA is the distributor of Kia vehicles, not a retail seller. REQUEST FOR ADMISSIONS No.3; The SUBJECT VEHICLE was a new motor vehicle for purposes of the Song Beverly Warranty Act. RESPONSE: KMA obj ects to this request as follows: 1. This Request is not full and complete in and of itself. 2. This Request is vague and ambiguous as t0 the phrase “new motor vehicle.” 3. KMA is the distributor of Kia vehicles, not a retail seller. REQUEST FOR ADMISSIONS NO. 3: In connection with the purchase of the SUBJECT VEHICLE, Defendant KIA MOTORS AMERICA, INC, gave a written warranty concerning the vehicle. /// /// 301 .224.DND - 00498108.DOCX 3 20CV364578 DEFENDANT KIA MOTORS AMERICA, INC.’S RESPONSES TO PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE AWN \OOOQONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESPONSE: KMA objects to this request as vague, ambiguous and argumentative to the extent that it improperly implies that KMA was under an obligation to replace the subj ect vehicle. REQUEST FOR ADMISSIONS N0. 11: L Defendant did not promptly refund the purchase price less any amount directly attributable t0 the use by the Plaintiff before discovery 0f the NONCONFORMITY. RESPONSE: KMA objects to this request on the grounds it is vague, ambiguous, overly broad, argumentative and presupposes the existence of a “nonconformity.” KMA also objects to the use of the term "nonconformity," as it is argumentative and assumes facts not in evidence. KMA objects to this request as vague, ambiguous and argumentative to the extent that it improperly implies that KMA was under an obligation to repurchase the subject vehicle. REQUEST FOR ADMISSIONS NO. 12: Plaintiff incurred damages as a result of the Defendant’s conduct. RESPONSE: KMA obj ects to this request on the grounds it is vague, ambiguous and overly broad, and not reasonably calculated to lead to the discovery of admissible evidence. KMA further objects to this Request to the extent that it calls for the premature discovery of expert witness information. Further, it violates the attomey-client privilege and work product doctrine. REQUEST FOR ADMISSIONS NO. l3: Plaintiff contacted Defendant regarding his VEHICLE. RESPONSE: KMA objects t0 this request 0n the grounds it is vague, ambiguous and overly broad as to time and scope. REQUEST FOR ADMISSIONS NO. 14: Defendant conducted an investigation and/or inquiry into whether Plaintiff s Vehicle should be repurchased pursuant to The Song-Beverly Warranty Act as a result of this contact by Plaintiff. 301 .224.DND - 004981 08.1)0cx 6 20CV364578 DEFENDANT KIA MOTORS AMERICA, lNC.’S RESPONSES T0 PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE \OOOflQUI-bUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESPONSE: KMA objects to this request 0n the grounds it is vague, ambiguous and overly broad and seeks information protected by the attomey-client privilege and work product doctrine privilege. KMA also objects to the use 0f the request as assuming facts not in evidence. REQUEST FOR ADMISSIONS NO. 15: Defendant is aware of its obligations as a manufacturer under the Song-Beverly Warranty Act. RESPONSE: KMA objects to this request as vague, ambiguous, and unintelligible as it does not adequately or properly identify what provisions under the Act it is in reference to, and consequently cannot be answered without speculation as to its meaning. This request is not reasonably calculated to lead to the discovery of admissible evidence. REQUEST FOR ADMISSIONS NO. 16: Defendant does not have a qualified dispute resolution process that conforms with Civil Code § 1973.22. RESPONSE: KMA objects to this request as vague, ambiguous, overly broad, argumentative, and assumes facts not in evidence. KMA further obj ects to this Request to the extent that it calls for the premature discovery 0f expert witness information. Further, it violates the attorney-client privilege and work product doctrine. REQUEST FOR ADMISSIONS NO. 17: Defendant has never noted any evidence of misuse or abuse 0f the SUBJECT VEHICLE by Plaintiff. RESPONSE: KMA objects to this request as vague, ambiguous, overly broad, argumentative, and assumes facts not in evidence. KMA further objects to this Request to the extent that it calls for the premature discovery 0f expert Witness information. Further, it violates the attomey-client privilege and work product doctrine. 301 .224.DND - 00498108.DOCX 7 20CV364578 DEFENDANT KIA MOTORS AMERICA, INC.’S RESPONSES TO PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE #UJN \OOOQQU‘I 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REQUEST FOR ADMISSIONS NO. 18: Defendant's service file contains no notations involving suspected misuse or abuse 0f the SUBJECT VEHICLE by Plaintiff. RESPONSE: KMA objects to this request as vague, ambiguous, overly broad, argumentative, and assumes facts not in evidence. KMA further objects t0 this Request to the extent that it calls for the premature discovery of expert witness information. Further, it violates the attomey-client privilege and work product doctrine. REQUEST FOR ADMISSIONS NO. 19: Defendants are currently unaware of any evidence of misuse or abuse of the SUBJECT VEHICLE by the Plaintiff. RESPONSE: KMA objects to this request as vague, ambiguous, overly broad, argumentative, and assumes facts not in evidence. KMA further objects to this Request to the extent that it calls for the premature discovery of expert witness information. Further, it violates the attorney-client privilege and work product doctrine. REQUEST FOR ADMISSIONS N0. 20: Plaintiff has never caused damage to the SUBJECT VEHICLE by misusing or abusing it. RESPONSE: KMA obj ects to this request as vague, ambiguous, overly broad, argumentative, and assumes facts not in evidence. KMA further objects to this Request to the extent that it calls for the premature discovery of expert witness information. Further, it violates the attomey-client privilege and work product doctrine. REQUEST FOR ADMISSIONS NO. 21: The SUBJECT VEHICLE has been out of service by reason 0f repair of the NONCONFORMITY by YOU for a cumulative total 0f more than 30 calendar days since delivery of the vehicle to Plaintiff. /// 301.224DND - 00498108.D0CX 8 20CV364578 DEFENDANT KIA MOTORS AMERICA, INC.’S RESPONSES TO PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE kWh) \DOOQQU} 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESPONSE: KMA obj ects to this request on the grounds it is vague, ambiguous, overly broad, argumentative and presupposes the existence 0f a “nonconformity.” KMA also obj ects to the use of the term "nonconformity," as it is argumentative and assumes facts not in evidence. REQUEST FOR ADMISSIONS NO. 22: The Song-Beverly Warranty Act does not require a, Consumer t0 specifically request either a repurchase or a replacement in order t0 trigger KIA MOTORS AMERICA, INC.’s obligations under Song-Beverly Consumer Warranty Act. RESPONSE: KMA obj ects to this request as being vague, ambiguous, overly broad, an incomplete hypothetical, assumes facts not in evidence and improperly seeks a legal conclusion. REQUEST FOR ADMISSIONS NO. 23: KIA MOTORS AMERICA, INC. will only investigate whether a vehicle should be repurchased or replaced if a customer specifically requests that their vehicle be repurchased or replaced. RESPONSE: KMA objects to this request as being vague, ambiguous, overly broad, argumentative, an incomplete hypothetical and assumes facts not in evidence. KMA further objects in that it seeks information protected by the attorney-client privilege and work product doctrine privilege REQUEST FOR ADMISSIONS NO. 24: Plaintiff is defined as a qualifying CONSUMER as defined by purposes of the Song Beverly Warranty Act. RESPONSE: KMA objects to this request on the grounds it is vague, ambiguous, overly broad, improperly seeking a legal conclusion and argumentative since the Song-Beverly Act does not define “qualifying Consumer” 0r “Consumer.” KMA is unable t0 admit 0r deny this Request because it is unintelligible, vague and ambiguous. /// 301 .224.DND - 00498108.D0CX 9 20CV364578 DEFENDANT KIA MOTORS AMERICA, INC.’S RESPONSES TO PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE \OOOQQUl-PUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unintelligible. 2. This Request is a premature request for expert opinion. (See Code Civ. Proc., §2038.210, et seq.) REQUEST FOR ADMISSIONS N0. 30: Admit that the sunroof rattling noise concern by Which the Plaintiff presented the SUBJECT VEHICLE at Stevens Creek Kia on September 13, 2019 constituted a substantial impairment of use. RESPONSE: KMA objects to this request as follows: 1. The phrase “sunroof rattling noise concerns” is vague, ambiguous, and unintelligible. 2. This Request is a premature request for expert opinion. (See Code Civ. Proc., § 2038.210, et seq.) REQUEST FOR ADMISSIONS NO. 31: Admit that the sunroof rattling noise concern by Which the Plaintiff presented the SUBJECT VEHICLE at Stevens Creek Kia on September 13, 2019 constituted a substantial impairment of value. RESPONSE: KMA obj ects to this request as follows: 1. The phrase “sunroof rattling noise concerns” is vague, ambiguous, and unintelligible. 2. This Request is a premature request for expert opinion. (See Code Civ. Proc., § 2038.210, et seq.) REQUEST FOR ADMISSIONS NO. 32: Admit that the sunroof rattling noise concern by Which the Plaintiffpresented the SUBJECT VEHICLE at Stevens Creek Kia on September 13, 2019 constituted a substantial impairment of safety. /// 301 .224.DND - 00498108.pocx 12 20CV364578 DEFENDANT KIA MOTORS AMERICA, INC.’S RESPONSES TO PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE .bUJN \OOOQQU‘I 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unintelligible. 2. This Request is a premature request for expert opinion. (See Code Civ. Proc., § 2038.210, et seq.) REQUEST FOR ADMISSIONS NO. 44: Admit that the trunk rattling noise concern by which the Plaintiff presented the SUBJECT VEHICLE at Winn Kia ofFremont on January 13, 2020 constituted a substantial impairment of safety. RESPONSE: KMA objects t0 this request as follows: 1. The phrase “trunk rattling noise concerns” is vague, ambiguous, and unintelligible. 2. This Request is a premature request for expert opinion. (See Code Civ. Proc., § 2038.210, et seq.). DATED: July 16, 2020 LEHRMAN LAW GROUP KATE S. LEHRMAN JACQUELINE BRUCE CHINERY DANIELLE N. DUARTE By: /s/ (Danieffew Quanta Danielle N. Duarte Attorneys for Defendant KIA MOTORS AMERICA, INC. 301 .224.DND ~ 00498108D0CX 17 20CV364578 DEFENDANT KIA MOTORS AMERICA, INC.’S RESPONSES T0 PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE KOOOQQUI-bUJNp-t NNNNNNNNNr-ir-dr-Ai-AHHHHHH OOQQM$WNHOKOOOQONM5WNHO PROOF OF SERVICE STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) I am employed in the County 0f Los Angeles, State of California. I am over the age of 18 and not a party t0 the within action; my business address is 12121 Wilshire Blvd, Suite 1300, Los Angeles, CA 90025. On July 16, 2020, I served, in the manner indicated below, the foregoing document described as: DEFENDANT KIA MOTORS AMERICA, INC.’S RESPONSES TO PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE on the interested parties in this action by placing true copies thereof, enclosed in sealed envelopes, at Los Angeles, CA addressed as follows: SEE ATTACHED SERVICE LIST [] BY OVERNIGHT DELIVERY: I caused such envelopes to be delivered by courier, with next day service, to the offices of the addressees. (C.C.P. § 1013(c)(d).) BY FACSIMILE: (C.C.P. § 1013(e)(t).) BY MAIL: I caused to be delivered by U.S. mail by placing a true copy thereof enclosed in sealed envelopes addressed as stated above. I am “readily familiar” with the firm’s practice of collection and processing documents for mailing. Under that practice it would be deposited with the U.S. postal service on that same day with postage thereon fully prepaid in the ordinary course of business. U BY PERSONAL SERVICE: I caused such envelopes to be delivered by hand to the offices of the addressees. (C.C.P. § 1011(a)(b).) BY ELECTRONIC MAIL: Itransmitted such document from Los Angeles, California, to the electronic mail address maintained by the person(s) on the SERVICE LIST as last indicated by that person on a document that he or she has filed in the above-entitled cause and served on this party. (C.C.P. § 1010.6(a)(6).) Per agreement and per state and local stay at home Orders re COVID19. [XX] I declare under penalty of peljury under the laws of the State 0f California that the above is true and correct. Executed on July 16, 2020, at Los Angeles, California. /s/ Téerem fl. May Theresa L. May 301 .224.DND - 00498108Docx 18 20CV364578 DEFENDANT KIA MOTORS AMERICA, INC.’S RESPONSES TO PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE \DOOQQUI-bWNp-a NNNNNNNNNHHHHr-tr-Av-‘r-ap-AH OOQQMkWNi-‘OKOOOQQM-pUJNP-‘O PROOF OF SERVICE LIST KIA MOTORS AMERICA. INC./THUERK. BRYAN (KO70-224)(301 .224) Case N0. 20CV364578 Page 1 David N. Barry, Esq. Attorneys for Plaintiff THE BARRY LAW FIRM BRYAN THUERK 11845 West Olympic Boulevard Suite 1270 Los Angeles, CA 90064 (310) 684-5859 (3 10) 862-4539 (FAX) dbarrv@mvlemonrights.com Jeramy Templin: jtemplin@mylemonrights.com Mela Kelly: mkelly@my1emonrights.com Ivy Flores: iflores@mylemonrights.com 301 .224.DND - 004981083004 19 20CV36457 8 DEFENDANT KIA MOTORS AMERICA, INC.’S RESPONSES TO PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE EXHIBIT 3 I THE Main Office BARRY 11845 W. Olympic Boulevard suite 1270 LA \X/ Log Angeks, Cahfomia 90064 FIRM Te1ephone (310) 684-5859 o Facsimile (310) 862-4539 tcandiotti@mylemonrights.Com July 30, 2020 VIA EMAIL AND U.S. MAIL: Danieflekfifiehrmanfiawgmup£am Danielle N. Duarte, Esq. Lehrman Law Group 12121 Wilshire Boulevard, Suite 1300 Los Angeles, CA 90025 Re: Bryan Thuerk v. Kia Motors America, Inc. Case No: 20CV364578 Dear Ms. Duarte: I am in receipt 0f your client, Defendant Kia Motors America, Inc.’s unverified responses t0 Plaintiff’s first set 0f discovery requests, served by electronic mail on July 16, 2020. This letter serves as my effort t0 meet and confer With you t0 informally resolve discovery disputes created by deficiencies in those responses, as required by the Code ofCivz‘l Procedure, including whether your client intends t0 verify these discovery responses. As you know, unverified response are tantamount t0 n0 response at all. See, Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636 Code osz'vz'l Procedure §2030.300. Therefore, please provide Code-compliant verifications t0 Defendant's original discovery responses within seven (7) days 0f the date of this letter. 1n addition t0 the lack 0f verifications, Plaintiff would like t0 address deficiencies in the served responses. As a reminder, the discovery act is broadly interpreted. Greyhound Corp. v. Super. Ct. (Clay) (1961) 56 Cal.2d 355, 384. Generally, "any party may obtain discovery regarding any subject matter involved if the matter either is itself admissible in evidence or appears reasonably calculated to lead t0 the discovery 0f admissible evidence.” CCP § 20] ,7. 0] 0. DEFENDANT'S RESPONSES TO PLAINTIFF'S FORM INTERROGATORIES "INCIDENT" is defined 0n page one 0f the Judicial Council of California's approved Form Interrogatories as follows: "INCIDENT includes the circumstances and events surrounding the alleged accident, injury, 0r other occurrence 0r breach 0f contract giving rise t0 this action 0r proceeding. " The definition is plain and straightforward, and there is nothing vague, ambiguous, or overbroad about it in Plaintiffs discovery in this case, thus, Defendant’s frequent objection to the contrary in its responses is not well taken. Defendant’s response t0 Form Interrogatory 1.1, Which asks you t0 state the name, address, telephone number, and relationship t0 you 0f each person who prepared 0r assisted in the preparation 0f these interrogatories, is not code-compliant. Defendant's response is as follows: "KMA objects lo this request 0n the following grounds: 1. KW Objects to this request because it is overly broad, vague, and ambiguous. In responding t0 this request, KMA presumes Plaintifi‘does not seek the discovery 0f allorney/clienl' communications, nor does Plaintiff seek the discovery 0f lhe attorney work product 0f either in-house 0r outside counsel. KMA ’s responses will be limited with this understanding. 2. This request seeks disclosure ofmalerials which are not reasonable related 1'0 the issues presented by the subject matter 0f this litigation and are irrelevant and immaterial, and not reasonably calculated t0 lead lo the discover; ofadmissz'ble evidence. ” It is axiomatic that an individual at KMA must have compiled the information 0n behalf 0f KMA (and your office). In accomplishing this task, this individual must have corresponded with individuals that have admissible knowledge 0f the facts in this case. Plaintiff is entitled t0 those facts and the testimony 0f those percipient witnesses and responsive documents. Defendant‘s "overly broad, vague, and ambiguous" objection is not well taken. Defendant and its counsel know perfectly well what this interrogatory is seeking, especially considering it is the very first question 0n the most commonly used discovery, and is written verbatim in every case that it is used in, as it uses language that has been approved by the Judicial Counsel 0f California. Finally, "vague and ambiguous" is not proper unless the question is so unintelligible that is impossible t0 answer in good faith. Cembrook v. Superior Court (Sterling Drug, Inc.) (1961) 56 Cal. 2d 423,428. Kia can certainly develop some kind 0f answer t0 question. This question is clear, extraordinarily common, and should be understood by a routine defendant like Kia Motors America, Inc. You, as learned counsel, know this, and accordingly, should work with your client to deliver a code-compliant response. ‘ Additionally, a court will not sustain an "overbroad" objection unless the objecting party can substantiate it. "Even wide-ranging discovery requests are permitted because discovery is designed to elicit all facts." See, Burke v. Superior Court (1969), 71 26 Cal.2d 276,285. Therefore, a further response is necessary identifying the individuals who prepared or assisted in the preparation of the responses. Next, Defendant KMA's response to Form Interrogatory 12.1 is incomplete. This Interrogatory asks KMA to provide the name, address and telephone number of all witnesses who have knowledge related to the allegations in the Complaint. In response to this Interrogatory, KMA listed a series of objections that are likely made in bad faith and/or are unsubstantiated. Plaintiffs counsel hopes that Defendant does not mean to be insulting and that this was simply an error. Nonetheless, Plaintiff will address each of those objections in tum. The term "INCIDENT" is defined above, using the Judicial Council of California~<.; definition. Surely, Defendant isn't choosing to ignore the guidance of the Judicial Council. Plaintiff does not seek to invade the attorney client or work-product privilege. However, such an objection cannot be sustained without a privilege log. Thus, Defendant should either withdraw this objection or produce a privilege log, and a further response is requested. Similarly, the proper way to address confidentiality concerns is to propose a protective order. Please submit a protective order or withdrawn this objection. Plaintiff looks forward to either of these actions. Plaintiff does not seek expert information yet, at this point. Kia should not disclose experts at this point. This interrogatory seeks factual information heid by percipient witnesses, which is certainly discoverable at this point in litigation. Plaintiff is entitled to the identity, by full name and address ( as called for by the interrogatory) of the percipient witnesses. Clearly, that information is relevant and readily obtainable by Kia as the work was performed by a KMA-authorized facility. Put more simply, this particular Interrogatory calls for KMA to identify those individuals that KMA intends to call at the time of trial. Here, if KMA intends to potentially call a witness to testify at trial, Plaintiff is entitled to depose that individual. Any attempt to argue that the KMA- authorized dealerships are "third parties" not related to KMA is merely an attempt to obfuscate the issue. Plaintiff does not have the ability to take his vehicle to any service facility to have it repaired under the warranty. Plaintiff must take the vehicle to a KMA-authorized service center- one that certainly has an ongoing operating agreement with KMA. Defendant KMA's relationship with its associated service centers is not arm's-length. As mentioned previously, in order to obtain the identity of the servicing technicians, arguably, KMA merely places a phone call to the dealership. Plaintiff would be required to direct a subpoena duces tecum to the dealership with the hopes of obtaining sufficient identifying information to later serve a deposition subpoena. Plaintiff cannot merely serve the servicing technicians with a subpoena for personal appearance to testify based on the technician identification number alone. Notwithstanding the issue of Plaintiff would be unable to properly 3 identify the individual for the subpoena itself, Plaintiff cannot effectuate service of the subpoena on the individual if the person's identity is unknown. See, Cal. Code Civ. Proc. §2020.220(b )(2) (Providing that personal service is required to command attendance.) It is undeniable that the Plaintiff is entitled to obtain that information in his trial preparation. It is equally undeniable that the court, if called upon to intervene, will not believe that requiring KMA to contact its own dealers for material information is unduly burdensome to the extent where Kia can rely on Section 2030.230 in formulating its response, keeping in mind that "all discovery imposes some burden on the responding party." West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal. 2d 407, 418. A further response is therefore required. Moving right along, Defendant's response to Form Interrogatory 15.1 is deficient as well. Form Interrogatory 15 .1 asks you to identify each denial of a material allegation and each special or affirmative defense in your pleadings and for each: (a) State all facts upon which you base the denial or a special or affirmative defense; (b) State the names, addresses and telephone numbers of all persons who have knowledge of those facts; and ( c) Identify all documents and other tangible things that support your denial or a special or affirmative defense, and state the name, address, and telephone number of the person who has each document. Defendant Kia Motors America, Inc. pled multiple affirmative defenses. However, a review the response to Form Interrogatory 15 .1 utterly fails to fully comply with the subpart requirements for each of your separate affirmative defenses. Defendant simply stated the same boilerplate objections that it stated in response to Form Interrogatory 1.1 and 12.1. Burke and West Pico Furniture Co. apply here as well, to Defendant's overly broad, and unjustly burdensome and oppressive objections. They should be withdrawn without further substantiation. Additionally, this interrogatory is only about Defendant's affirmative defenses, presumably how it intends to defend itself against Plaintiffs complaint. If Defendant finds arguing its case to be too burdensome, perhaps it should withdraw its Answer and submit to Plaintiff what he prayed for in his complaint. There is no point of continuing this litigation if Defendant will not even try to support its defenses, especially considering one of those defenses is that Plaintiff has failed to state a cause of action. Instead of wasting everyone's time, Defendant can simply withdraw its answer if it has nothing to support it and does not intend to find anything to support it. If Defendant does not have facts, witnesses, or documents to support a specific affirmative defense, then it should withdraw those defenses accordingly. Otherwise, a further response is necessary because the current response is devoid of the content sought in this Interrogatory. Defendant's argument that this interrogatory seeks information not reasonably related to the subject matter is clearly in error. This question is about Defendant's affirmative defenses, which alone makes discoverable. Please withdraw this erroneous objection. 4 Defendant's confidentiality objection is impropar for the same reasons as addressed above. Defendant should propose a protective order instead 0f raising this obj ection. For all these reasons, a further response t0 Form Interrogatory 15 .1 is required. The reSponse t0 Form Interrogatory 17.1 is also deficient. For each and every response t0 a Request for Admission that is not an unqualified admission, you are to state the number of the request, all facts upon Which you base your response, the names, addresses and telephone numbers 0f all persons that have knowledge 0f those facts, identify all documents and other tangible things that support your response, and the name, address and telephone number 0f the person who has each document or thing. Instead, you have used the same objections as you used t0 For Interrogatory 15 .1, and they should be withdrawn for similar reasons. Additionally, the code requires that you answer separately, as t0 each Request for Admission that is not an unqualified admission. Please format your answer to be code-compliant. Thus, a further, verified response is required. In summary, Plaintiff expects further, verified responses t0 Form Interrogatory Nos. 1.1, 12.1, 15.1, and 17.1. DEFENDANT'S RESPONSES T0 PLAINTIFF'S REQUESTS FOR ADMISSION Requests for Admission are not "true" discovery. Requests for admission are not discovery devices, per se. Burch v. Gombos (2000) 82 Cal.App.4th 352, 359. They are designed to set to rest, triable issues 0f fact with the ultimate goal of expediting trial and the unnecessary expenses 0f proof at trial. Cembmok v. Superior Court (1961) 56 Cal.2d 423; St; Mary v. Superior Court (2014) 223 Cal.App.4th 762; Hillman v. Stulrz (1968), 263 Ca1.App.2d 848, 885. ("They were enacted t0 eliminate the necessity of putting 0n formal proof 0f essentially uncontroverted facts, not as a substitute for trial 0f genuinely disputed facts”). Accordinglyj when a litigant "toys" with the process by evading a factual proposition by avoiding the materials that provides the response t0 such requests, it defeats the purpose and the function 0f the requests and unduly forces plaintiff to waste time, money and energy proving factual propositions that can and should be readily admitted. A party "cannot plead ignorance t0 information which can be obtained from sources under his control." Deyo v. Kilboume (1978) 84 Cal.App.3d 771, 782 [Emphasis added] [If a party is unable t0 fully answer it should set forth the efforts made t0 secure the information] Id. Request N0. 1 asks Defendant t0 admit that "Plaintiff purchased the SUBJECT VEHICLE." Defendant's objection as ”vague and ambiguous" is improper. The Defendant can answer as it understands the Request, in the spirit 0f Cembrook. Defendant fails to substantiate its ”overly broad" objection under Burke. Finally, Defendant's Objection that the Request is "argumentative" is bewildering. Plaintiff WOuld find it very hard to believe that Defendant intends t0 argue that Plaintiff did not "purchase" the Vehicle under any reasonable interpretation of the word "purchase." Plaintiffs request here is not argumentative. If anything, Defendant's use of the term "argumentative" here is argumentative. In addition to Request No. 1, Defendant makes the same "vague and ambiguous" objections in Response to Plaintiffs Request for Admissions No. 2 - 17, and 21 - 44. Both KMA and Lehrman Law Group are sophisticated organizations that can answer of these Requests according to the code and in good faith, in the spirit of Cembrook. Not doing so just wastes everyone's time, including the courts, which typically do not bless such nuisance objections. Please withdraw these objections and answer according to your best interpretation of the requests, in the spirit of Cembrook. Speaking of the Code, it requires that the responding party: (1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonable and clearly qualified by the responding party. (2) Deny so much of the matter involved in the request as is untrue. (3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge. A party "cannot plead ignorance to information which can be obtained from sources under his control." Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782 [Emphasis added.] The whole point of discovery is to take the "game element" out of trial. Greyhound C01p. v. Superior Court (1961) 56 Cal.2d 355. See also, Deyo v. Kilbourne (1978) 84 Cal.App.3d 771,782. [If a party is unable to fully answer it should set forth the efforts made to secure the information.] KMA, being in the chain of commerce leading up to Plaintiffs purchase of the subject vehicle possesses sufficient information to respond to this Request in good faith. Finally, Defendant made another "overly broad" objection to Request No. 1, and did not attempt to substantiate it under Burke, and West Pico Furniture Co. Defendant also made these objections in response to Request Nos. 2, 4 - 9, 11 - 14, 15 - 17, and 21 - 26. Please substantiate these objections or withdraw them and provide a further response. For these reasons a further response is therefore required to Request for Admission No. 1. Request No. 2 asked Defendant to admit that the subject vehicle was a new motor vehicle, for purposes of Song-Beverly Warranty Act. Defendant must further respond to No. 2 to admit or deny that the subject vehicle was new for purposes of the Song-Beverly Consumer Warranty Act, for the same reasons it must submit a further response to Request for Admission No. 1. An interrogatory is "argumentative" if it is a question that masquerades as a fact and is indeed not meant to be answered. [insert citation from toolbox.] That is clearly not the case here; Plaintiff is seeking KMA contention as to whether the Vehicle was a "new motor vehicle" for purposes of the Song-Beverly Act. For similar reasons, Defendant's "argumentative" objections as to Request Nos. 4 - 6, 8 -10, 16, 21, 23 -26. 6 Plaintiffs issues with Defendant's Response to Request for Admission No. 3 has already been addressed. Defendant should provide a verified, code-compliant, answer, accordingly to its understanding of the Request. In its Response to Request for Admission No. 4, in addition to nuisance objections that have already been addressed, Defendant makes "presupposes" and "assumes facts" objections. An interrogatory assumes facts if it is meant to elicit an unintentional admission. Objections to these questions are primarily meant to protect witnesses testifying at trial. Such objections are not proper in response to written interrogatory because a substantive response can be written in such a way as to avoid any unintentional admissions. For example, Defendant can say that it "contends that the Vehicle never had a nonconformity" and then proceed to give a code-compliant response. As such, Plaintiff asks that Defendant withdraw these objections and answer the Request accordingly. This also applies to Request Nos. 5, 6, 8, 9, 11, 14, 21, and 23. As to No. 9, a very simple Request asking Defendant to admit that is was aware of its restitution or replacement obligations under the Song-Beverly Warranty Act, the answer is wholly nonresponsive to the Request. Arguably, KMA has been involved in numerous litigation matters involving Song-Beverly, and additionally has provided restitution to consumers and/or repurchased their vehicles. Nitpicking objections as to vagueness and ambiguity are rarely sustained by the courts and are only sustained when the request is completely unintelligible. A party has a duty to answer if "the nature of the information sought is apparent." Deyo at 783. KMA's response to this Request is clearly not straight forward, as required by the Code and warrants a further response that is Code compliant. Please provide a simple admission or denial to Request for Admission No. 9 without rewriting Plaintiffs Request. Defendant's discoverability objection to Request No. 12 is not well taken. Damages are a critical element in any lawsuit, and certainly evidence informing the existence and amount of damages is discoverable. Anything that would allow a party to prepare for trial in this matter is discoverable. Lipton v. Superior Court, 48 Cal.App.4th 1599, 611. Any question as to discoverability is resolved in favor of allowing discovery. Glenfed Dev. Corp. v. Superior Court, 53 Cal.App.4th 1113, 9. Plaintiff respectfully asks that Defendant withdraw this frivolous objection and provide a code-compliant response. Requests for Admissions Nos. 17, 18, 19, and 20, relate to whether Defendant noted any evidence of misuse or abuse of the subject vehicle by Plaintiff, whether Defendant's service file contains notations involving suspected misuse or abuse of the subject vehicle, whether Defendant is currently unaware of any evidence of misuse or abuse of the subject vehicle by the Plaintiff, and whether Plaintiff caused damage to the subject vehicle by misusing or abusing it. Defendant claimed that after a reasonable inquiry, the information presently known or readily obtainable is insufficient to admit or deny these Requests, but failed to explain what was involved, if anything, in its "reasonable inquiry." The responses are disingenuous, inadequate, and simply evasive. 7 Defendant has placed these facts directly at issue by asserting Affirmative Defenses in its Answer that contend that Plaintiff and/or others are responsible for any alleged damages due to misuse and abuse by Plaintiff and/or others and related claims. Therefore, Plaintiff has an absolute right to discover facts relating to these defenses. A party "cannot plead ignorance to information which can be obtained from sources under his control." Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782 [Emphasis added.] [If a party is unable to fully answer it should set forth the efforts made to secure the information.] These Requests are straightforward and relate to the past; either Kia noted that there was misuse or abuse, or it did not. Defendant's responses given are blatant attempts to avoid responding and may be considered an abuse of discovery should Plaintiff be required to seek judicial intervention. An inability to respond can only be stated where there is a true lack of information available to the responding party. Defendant raised attorney-client and/or work product privilege concerns in its Reponses to Request Nos. 14 and 23. Please withdraw these objections and provide a further response, or produce a privilege log. In addition to objections that have already been addressed, Defendant has stated, in Response to Request for Admission No. 15, stated that Defendant's awareness of its Song-Beverly obligations is not reasonably calculated to lead to the admission of admissible evidence. This Request is clearly related to the civil penalty component of the Song-Beverly Act, of which Defendant's awareness is a crucial aspect. As such, Plaintiff asks that Defendant withdraw this objection. In response to Requests for Admission Nos. 17-20 and 27-44, in addition to other objections that Plaintiff has already addressed, Defendant objects that these Requests seek premature expert opinion. Plaintiff does not seek expert testimony here, and merely asks for Defendant's contentions as to these issues, in an effort to limit issues that the parties will have to litigate. If Defendant has a contention either way, it should say so, and as such, further responses are required. In response to Request for Admission No. 22, Defendant KMA objects to this request as being vague, ambiguous, overly broad, an incomplete hypothetical, assumes facts not in evidence and improperly seeks a legal conclusion. KMA cannot admit or deny this request on the grounds that it is unintelligible, vague, and ambiguous. KMA1s objections are meritless and boilerplate. Defendant KMA has a duty to respond if the nature of the Request is understood, and this Request is straightforward. This information is germane to whether or not KMA complied with the requirements of the Song-Beverly Act, and whether civil penalties are warranted. Accordingly, KMA must provide a response to this request without objection. Plaintiffs Request for Admission No. 24 asked Defendant to admit that Plaintiff is defined as a qualifying CONSUMER as defined for purposes of the Song Beverly Warranty Act. Defendant asserted boilerplate objections, and claimed that this is unintelligible, vague and ambiguous. 8 As stated at the beginning 0f this section, Requests for Admission are not ”true" discovery. Requests for admission are not discovery devices, per se. Burch v. Gombos (2000) 82 Cal.App.4th 352, 359. They are designed to set to rest, triable issues 0f fact with the ultimate goal of expediting trial and the unnecessary expenses 0f proof at trial. Cembrook v. Superior Court (1961) 56 Ca1.2d 423; St. Mary v. Superior Court (2014) 223 Ca1.App.4th 762; Hillman v. Stultz (1968), 263 Cal.App.2d 848, 885. ("They were enacted t0 eliminate the necessity 0f putting on formal proof of essentially uncontroverted facts, not as a substitute for trial 0f genuinely disputed facts"). Accordingly, when a litigant "toys" with the process by evading a factual proposition by avoiding the materials that provides the response to such requests, it defeats the purpose and the function 0f the requests and unduly forces plaintiff t0 waste time, money and energy proving factual propositions that can and should be readily admitted. Yet, that is exactly what Defendant has improperly done here. A further response t0 Request for Admission N0. 24 is necessary. Plaintiff respectfully asks for further, varified responses t0 each 0f the propounded Requests for Admission. DEFENDANT'S RESPONSES TO PLAINTIFF'S SPECIAL INTERROGATORIES Plaintiff's Special Interrogatory N0. 1 asks Defendant t0 identify all persons who were consulted 0r provided answers t0 these interrogatories. For the same reasons discussed in relation t0 Form Interrogatory N0. 1.1, defendant’s response is insufficient, and a further response is necessary t0 cure the deficiencies. Defendant's response to Special Interrogatory No. 2 makes the same frivolous objections, and a further response, or at least a protective order, is required. Special Interrogatory Nos. 3 - 6 are all related t0 Special Interrogatory N0 2., Which does not have a substantive response, and only contains the same objections as those used in Special Interrogatory N0. 2. Thus, once Defendant provides a substantive response to Special Interrogatory No. 2, it should also provide further responses to Special Intenogatory Nos. 3 - 6. Defendant’s response to Special Interrogatory N0. 7, states overly broad, vague and ambiguous, attomey-client and work product privilege, not reasonably calculated, CCP 2030,0606), and confidentiality objections. Overly broad has been addressed above, and Defendant should answer, in accordance with Burke. "Vague and ambiguous" has also been addressed, and Defendant should answer in accordance with Cembrook. Defendant's "not reasonably calculated" objections should be overruled. Discoverability standards are very liberally applied, and is far broader than admissibility at trial. Anything that would allow a party t0 prepare for trial in this matter is discoverable. Lipton, 48 Cal.App.4th 1599, 61 1. Any question as t0 discoverability is resolved in favor of allowing discovery. Glenfed Dev. Corp, 53 Ca1.App.4th 1113, 9. Clearly, admissible evidence could be contained in the communications this Special Interrogatory seeks t0 uncover. Additionally, Special Interrogatory N0. 7 is a yes 0r n0 question and thus cannot be compound. Finally, if Defendant has legitimate privilege concerns, it should propose a protective order. Thus, a further response is required. Similarly, further responses are required for Interrogatory Nos. 8, 9, 10, and 11, since they relate to Special Interrogatory No. 7. Defendant's responses are deficient for the same reasons as discussed in No. 7. In response to Special Interrogatory No. 14, in addition to objections that Plaintiff has already addressed, Defendant states that Plaintiff has equal ability to identify all persons who performed warranty repairs on the Vehicle. Defendant, as the provider of the waiTanty of the Vehicle, knows all the information of these technicians. All they have to do is perform a VIN search, and the provide the information to Plaintiff. Plaintiff cannot find this information with the ease that Defendant can. This case is a breach of warranty case and the persons who performed the warranty repairs are therefore percipient witnesses. Defendant's evasive tactics are not well taken. Please further respond to identify the persons who performed the warranty repairs upon the subject vehicle. A further and complete response to No. 14 is hereby demanded. Defendant's responses to the remainder of Plaintiffs Special Interrogatories are repetitive and evasive, and identical to ones already discussed. As such, they should be withdrawn, and further responses should be provided. Special Interrogatory No. 25 asks KMA to identify all persons responsible for its customer relations department in the region having jurisdiction over Plaintiffs complaints, and Special Interrogatory No. 26 asks Defendant to identify the person(s) who is most knowledgeable regarding Defendant's warranty policies, including but not limited to policies that Defendant may have had regarding the replacement or reimbursement of allegedly defective automobiles, respectively. Defendant deflected these and did not provide answers responsive to the Interrogatories. Instead, Defendant asserted the same boilerplate objections. Plaintiff is entitled to the identifies of these key witnesses who oversee its customer relations department. A further response is necessary. As a matter of statutory law, witness information is not protected. "Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter ... . " [Emphasis added]. C.C.P. §§2017.010; 2030.0l0(a); Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539; 1536-1547. Next, Defendant does not have the right to choose how Plaintiff conducts his discovery. As long as Plaintiff propounds discovery properly pursuant to the Code, as Plaintiff has done, then Defendant has an obligation to respond properly. Defendant cannot decide that Plaintiff should choose a different method, and when Plaintiff does, only then will Defendant appropriately respond. This is insufficient and Defendant has failed to provide any legal authorities to support its position with respect to these two Interrogatories. Defendant has failed to provide a complete and straightforward response setting forth "the truth, the whole truth and nothing but the truth." C.C.P. § 2030.220 (a), (b). Thus, a further response is requested to Nos. 25 and 26. Special Interrogatory No. 27 asks Defendant to list all Special Service Messages and/or TSBs that relate to each nonconformity in the subject vehicle, as alleged in Plaintiffs Complaint filed in this action. Defendant asserted the same boilerplate objections, all of which should be denied for reasons previously discussed. The Discovery Act is broadly interpreted. Greyhound Corp. v. Super. Ct. (Clay) ( 1961) 56 Cal.2d 355, 384. Generally, "any party may obtain discovery regarding any subject matter involved ... if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence." CCP § 2017.010. Plaintiff is entitled to a list of all of the TSBs and/or special service messages that relate to all of his allegations in the Complaint, not limited to those that Defendant considers related. A further response is required to No. 27. Special Interrogatory Nos. 28, 29, and 30 asks if KMA contends that the nonconformity in the Subject Vehicle does not substantially impair the value, use, or safety of the Subject Vehicle, state all facts that support your contention, and identify all documents that support your contention. Defendant raised the same objections and stated that it cannot answer because discovery is ongoing. Plaintiff is entitled to KMA' s straightforward responses, according to the information it cmTently has. Special Interrogatory Nos. 29 and 30 ask KMA to state all the facts and produce all documents that support its contention if it answered the Special Interrogatory affirmatively. KMA simply responds, Complete and further responses are necessary. Defendant made the same objections to Special Interrogatory 31, but Plaintiff 1 s nonetheless entitled to an answer according to Defendant's best knowledge. Regarding Special Interrogatory Nos. 33 through 36, you advise Plaintiff to "See KMA's response to Interrogatory No. 32, above. KMA's attempted responses are wholly nonresponsive to the Interrogatories as propounded. The Interrogatories as propounded asked KMA whether it complied with their warranty obligations under the Song-Beverly Warranty Act, and whether Defendants were able to repair all of the nonconformities and conform the vehicle to the express warranty. Nothing more, nothing less. These are, without a doubt, the most rudimentary of contention interrogatories. KMA' s attempt to muddy the waters with the introduction of additional terms are a red herring and a blatant attempt to avoid responding to the Interrogatories as propounded. Either KMA complied with its obligations or it did not. Either KMA can support its claims or it cannot. Plaintiff is entitled to answers. Further responses are required for Special Interrogatory Nos. 32 - 36. Special Interrogatory makes the same boilerplate and/or objections in response to Special Interrogatory No. 37. These objections should be withdrawn, and a further response should be provided. 11 Special Interrogatory No. 38 concerns whether a written warranty was provided to the Plaintiff at the time of sale of the subject vehicle. Defendant's objections are the same boilerplate and frivolous objections that have been previously used and also include that the Interrogatory is irrelevant, immaterial, calls for a legal conclusion, and is unintelligible. These objections are not well taken. Deyo v. Kilbourne stands for the proposition that "vague and ambiguous objections are valid only if the question or request is totally unintelligible. Otherwise, the responding party has a duty to answer if 'the nature of the information sought is apparent."' See Id. at 783. Clearly, KMA is aware of the nature of the information being sought and has a duty to respond in good faith. A further response that fully responds to the Interrogatory as propounded is required. For reasons addressed above, a further response is also required for Special Interrogatory No. 39. This is a Song-Beverly Warranty Act lawsuit. It is axiomatic that warranties are relevant. Please provide a further response. Special Interrogatory No. 40 asks for witness information. This Interrogatory asks Defendant to identify individuals within Defendant's company who are responsible for ensuring that Defendant complies with Song-Beverly. Plaintiffs entire lawsuit is premised on allegations that Defendant violated the Song-Beverly Consumer Warranty Act. As such, Plaintiff is entitled to know who the individuals are within Defendant's company that are responsible for making sure Defendant complies with California law. If no such individual(s) exist(s), then Defendant must indicate this under oath. Defendant's boilerplate and unsubstantiated objections should be withdrawn. As such, a further response is required. Special Interrogatory No. 41 refers to Special Interrogatory No. 40 for its answer. This is nonresponsive and deficient. For the reasons stated above, a further response is necessary. As to No. 42, after objections, Defendant asserted attorney-client privilege. Please explain how and why this objection applies here, provide a privilege log, or otherwise respond fully. Similarly, Special Interrogatory No. 43 deals with identification of key witnesses, yet Defendant failed to answer, but instead raised the same boilerplate and frivolous objections. Defendant is obligated to identify these witnesses. The same applies to Special Interrogatory No. 44. Further responses are therefore required. Further responses to Special Inte1TOgatory No. 45 are also necessary because Defendant has not produced a privilege log. Defendant's response to Special Interrogatory No. 46 is nonresponsive. This particular interrogatory calls for KMA to state the number of repair attempts that they were afforded. For the same reasons discussed previously, a broad reference to documents produced is unacceptable. This is a contention interrogatory, entirely proper. Surely KMA already performed this calculation and simply prefers not to provide an answer. 12 No. 4 7 seeks Defendant's definition of "non-conformity." Defendant responded with all objections and a claim that this improperly seeks a legal conclusion. Plaintiff contends that Defendant must answer this if Defendant wishes to defend its client in this case, particularly because Defendant has said elsewhere that "non-conformity" is vague and ambiguous. The existing response is a bad faith evasive tactic. A further response is required. With respect to No. 48, Defendant's boilerplate objections are not substantiated as applied, and the fact that this may seek a legal conclusion does not make it objectionable. The information sought is relevant and Plaintiffs are entitled to a substantive response. Similarly, in response to Nos. 49 and 50, Defendant asserted unsubstantiated objections only and failed to give any substantive responses. Please provide legal authorities to support Defendant's position that these are Code compliant responses to relevant and nonprivileged Interrogatories. Plaintiff contends that they are not and thus, Defendant must further respond with substantive answers. Special Interrogatory No. 51 asks Defendant to list all technical service bulletins that are applicable to the subject vehicle, including any that were superseded. Defendant's response only includes the san1e boilerplate and frivolous objections that Defendant has used previously. This is the discovery stage, and Plaintiff is entitled to a list of all TSBs relating to this vehicle, including those superseded. Defendant's knowledge of known defects that affect its vehicles is relevant. Defendant may not condition its response on arbitrary requfrements of its own making. Accordingly, a further response is necessary. Special Interrogatory No. 52 ask to explain in detail the process by which a technical service bulletin is recalled or suspended. Defendant claims that the request is overly broad, immaterial, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. It further alleges that this is an abuse of discovery by Plaintiff because Plaintiff did not even identify any TSB. How can Plaintiff possibly identify the TSBs when Defendant will not provide a complete list or produce the full set of those that apply to the subject vehicle? Therefore, a further response is necessary. Special Interrogatory No. 53 asks Defendant to state the number of days the vehicle was out of service for warranty repairs. There are no privileges or substantiated objections that apply. The total number of "down days" is essential to determining if the lemon law presumption applies. The dealer repair orders do not provide the response because the open and close dates on a dealer's repair orders are often inaccurate and thus do not accurately reflect out-of-service time; in fact, repair orders remain open due to circumstances not reflected in the documents alluded to. As such, the records identified do not answer the question and so the response on its face is incomplete and non-responsive. The appropriate information is readily available to Defendant; it can obtain it by contacting its authorized dealer. Defendant is required to provide answers that are "as complete and straightforward as the information reasonably available to the responding party permits." Defendant's duty also encompasses the requirement that it make a reasonable and good faith effort to obtain the information sought by the interrogatory, except where that information is readily available to the propounding party. Regency Health Services, Inc. v. Superior Court (1998) 64 Cal. App.4th 13 1496, 1504. This includes referring t0 all sources 0f information that are under the party's control. California Code 0f Civil Procedure § 2030.220(a), (b). To be certain, information related t0 work performed by Defendant-authorized service centers is under the control of Defendant, and Defendant is clearly able t0 ascertain which Defendant-authorized service centers performed warranty repairs on the subject vehicle. A further response is required t0 No. 53. Plaintiff reSpectfully asks for further, verified responses t0 each 0f the propounded Special Interrogatories. DEFENDANT'S RESPONSES TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS As a preliminary note, none 0f Defendant's Responses t0 Plaintiffs Request for Production 0f Documents are Code-compliant. A document response must consist 0f: (1) an agreement to comply, stating whether production 0r inspection will be allowed "in whole 0r in part” and that all documents or things in the possession, custody, 0r control 0f the respondent, as to which n0 objection is made, will be included, by the date set for inspection (unless informally extended in writing, 0r the designed timing is subject t0 objection); (2) a representation 0f inability t0 comply, with a specification of any person believed 0r known to have possession 0f documents; 0r, (3) objections and specifications 0f Withheld documents. Code osz'vil Procedure §§2031.210 (a), 2031.220, 2031.270, and 2031.280(b ); Wei] & Brown, Civ. Pro. Before Trial (The Rutter Group 2012) W 8:1469-9zl474. A11 0f Defendant's Responses must be supplemented t0 comply with the Code. None 0f Defendant’s responses had any language even close t0 What is required by the code. Defendant’s responses exclusively consisted 0f objections. Moreover, Defendant's document production in this case is entirely deficient. Defendant produced no documents, and has only used the same frivolous, unsubstantiated, and boilerplate objections. Clearly, Defendant must acknowledge the obvious deficiency 0f a non-existent document production. Again, all 0f. these objections should be overruled for reasons that have already been addressed in this letter. Time and again throughout these objections, Defendant raised concerns based 0n confidentiality and trade secrets, and has not proposed a protective order when it is Defendant who has the burden 0f seeking a protective order and substantiating why documents it claims are privileged require protection. Until it d0€s so, there is n0 reason why Defendant should not produce the requested documents, Which Plaintiff contends d0 not meet the minimum threshold for protection anyway. Plaintiff objects t0 Defendant's conditioning the production of documents on the execution 0f a Stipulated Proposed Protective Order. Pursuant t0 CCP sections 2016.040 and 203 1 .060(a), this serves as Plaintiffs effort t0 informally resolve this matter. The following discussions provide prima facie evidence 0f good cause for the production of the documents sought by Plaintiff in this case. See, CCP. § 2031.31 O(b )(1) [ A motion for an order compelling a further response t0 a production request "shall set forth specific facts 14 showing good cause justifying the discovery sought..."] Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117. Unless there is a legitimate privilege issue or claim of attorney work product, the moving party's burden is met simply by a showing or relevance. TBG Insurance Services Corp. v. Superior Court (2002) 96 Cal.App.4th 443; Kirkland v. Superior Court (2002), 95 Cal.App.4th 92, 98. Request for Production No. 1 seeks production of all repair orders including front and back of each page, handwritten notes, hard cards, accounting copies regarding, pertaining to, or relating to the subject vehicle. Defendant has produced very little in this regard and certainly not all variations or versions of all involved repair orders. These are clearly relevant and nonprivileged documents in a Song-Beverly case alleging breach of implied and express warranties. Further responses and production are necessary. For the same reasons stated above, Defendant must also provide further responses and production to Request or Production No. 2. Request for Production Nos. 3 and 4 ask for all warranty repair documents regarding, pertaining, or relating to the subject vehicle, and all warranty reimbursement documents applicable to the subject vehicle, respectively. Defendant's confidentiality concerns can be resolved with a protective order, but Defendant has yet to produce a protective order for review.' Therefore, further responses with an accompanying document production are necessary. Request Nos. 5 and 6 seek all warranty documents applicable to the subject vehicle and all documents related to any examination, test, or inspection performed with respect to the subject vehicle. For the same reasons as above, a further response and responsive document production is necessary. Request Nos. 7 and 8 seek pre-delivery preparation related documents, and any service, adjustments, repairs, or restorations to the subject vehicle prior to delivery to Plaintiff, respectively. Defendant's response to each made the same boilerplate objections, and thus, a further responses and an accompanying document production is necessary. Request for Production No. 9 seeks production of all recall documents regarding, pertaining, or relating to the subject vehicle, including but not limited to, service bulletins and/or technical service bulletins. Defendant's objections, like those above, are not well taken and should be withdrawn. Please produce all service bulletins. As for Request for Production No. 10, Defendant's objections are similarly unsubstantiated, discoverability is very broad, and Defendant is required to answer according the documents it does have. Anything that would allow a party to prepare for trial in this matter is discoverable. Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 611. Any question as to discoverability is resolved in favor of allowing discovery. Glenfed Dev. Corp. v. Superior Court ( 1997) 5 3 Cal.App. 4th 1113, 9. As such, a further response and accompanying document production is required. With respect to Nos. 11 and 12, a further response and document production is necessary for the same reasons as stated above. Wide-ranging discovery responses are permitted because discovery is meant to elicit all facts. Burke. 15 In response to Plaintiffs Request for Production of Documents No. 13 seeking production of all statements taken by Defendant or anyone acting on its behalf from any person with respect to the subject vehicle, Defendant makes the same unsubstantiated objections and never submitted a proposed protective order. Thus, the need for such an order has not been substantiated in any way, and Plaintiff is entitled to the documents sought. A further production 1 s necessary. Request for Production Nos. 14 and 15 seek production of all documents evidencing any communications regarding the subject vehicle and/or communications between Plaintiff and Defendant. First of all, as has been repeated, Defendant has not produced a document production, and if there are any privileged documents that Defendant is withholding based upon privilege, then Plaintiff is entitled to a privilege log to assess whether protection is appropriate. Please provide a privilege log, or otherwise clarify your responses to indicate clearly that no responsive documents, privileged or not are being withheld from Plaintiff. For the same reasons as discussed to varying degrees above, a further response with production of documents to Request No. 16, 17, and 18 is necessary. Request for Production No. 19 asks Defendant to produce the complete Service File with respect to the Subject Vehicle. No Service file/records were produced. A further response with responsive document production is necessary. Request for Production No. 20 asks Defendant to produce the complete Sales and Service Accounting File. Again, no sales records were produced. A further response with responsive document production is necessary. For Request for Production No. 21, however, Defendant failed to produce the sales and service records and the Warranty History Inquiry. Please produce these documents, as well as any documents responsive to Request for Production No. 22. Request for Production No. 23 asks for Defendant's "complete file relating specifically to the subject vehicle, including but not limited to, deal jacket." Defendant "objects to this request because it is overly broad, vague and ambiguous, and "presumes Plaintiff does not seek the discovery of attorney/ client communications, nor does Plaintiff seeks the discovery of the attorney work product of either in-house or outside counsel." Defendant has failed to properly respond to this request. Please explain how these objections contain any merit. Produce the referenced documents that Defendant failed to produce including the sales and service records and Warranty History Inquiry, as well as any documents responsive to Request for Production Nos. 24 29, all of which raise the same frivolous and boilerplate objections. For Request for Production Nos. 30, as explained previously in this letter, the burden is on the party seeking protection to substantiate the need for protection and seek an order if necessary. Defendant failed to justify the need for one so far. Please further respond and produce all responsive documents. 16 Request for Production No. 31 asks for all documents relating to the customer call center, including but not limited to, all flow charts, processes, and/or scripts. Defendant's response is not responsive to the Request and for that reason a further response is sought, as well as for Request for Production No. 32. Defendant's objections claiming material that is confidential, proprietary, and protected by trade secrets are not supported by the requisite showing. A party claiming confidentiality protections must show good cause for the need in terms of a protective order. Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4 th 261, 318. Defendant must show that the information sought actually contains confidential commercial information (not otherwise known to others in the pertinent field) and that its dissemination would injure Defendant. See Id. Kia has not shown that the information sought is generally unknown to other auto manufacturers or others similarly situated who could gain an advantage from its use, nor shown that any harm would result to Defendant from such use. Therefore, conclusory allegations and objection not sufficient. Defendant failed to include or refer to any privilege logs or similar documents describing the allegedly confidential documents. See, Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181. The purpose of a privilege log is to provide a specific factual description of documents in support of substantiating a claim of privilege in connection with a request for document production. Since these responses include no details or enumeration of allegedly confidential documents, Plaintiff cannot evaluate Kia's entitlement to these asserted protections. These documents are clearly relevant as they evidence Kia Motors America, Inc.' s policies and procedures for evaluating whether or not a customer's vehicle qualifies for repurchase under Song-Beverly. Whether or not Defendant willfully violated Song-Beverly is relevant to the potential for a civil penalty of up to two times Plaintiffs actual damages pursuant to Civil Code § 1794( c ). Accordingly, a further response is necessary. Request for Production No. 33 asks for all documents related to the technical hotline. Defendant again asserted boilerplate objections, and failed to propose a protective order. As discussed in relation to Request for Production Nos. 30, 31, and 32, this is unacceptable. Further responses and production are necessary. Request for Production No. 34 asks for all documents related to efforts by you to reduce the number of repeat repair attempts for a customer. Defendant's objections are with merit and it has not been shown how this request seeks confidential, proprietary, or trade secret information. Clearly, manufacturers and warranty defense lawyers know what a "repeat repair attempt" is, as it is a term regularly used in the context of Song-Beverly cases. Therefore, a further response is necessary. I also note that you have objected to Request for Production No. 35 which asks for all documents related to efforts by you to reduce the number of reacquired vehicles as well as Request for Production No. 36 which asks for all documents related to repeat repair procedures for remedying customer concerns. Clearly this information is relevant as Plaintiff is entitled to efforts by Defendant to repair the subject vehicle. Further responses with document production are required. All the other boilerplate objections that Defendant has repeated in these responses have been soundly addressed elsewhere in this letter. 17 Request for Production Nos. 37 through 42 seek documents evidencing, relating, or referring to complaints by owners of the same year, make, and model as the subject vehicle regarding any of the conditions, defects, or nonconformities for which Plaintiff presented the subject vehicle to you or your authorized repair facility for repair, and production of all surveys, reports, summaries, or other documents in which owners of the same year, make, and model as the subject vehicle have reported to you any of the specific problems. Defendant asserted numerous objections on the grounds that each Request is overly broad, vague, and ambiguous, and not properly limited in time and scope, irrelevant, seeks proprietary, commercially sensitive and confidential information, and does not specify with reasonable particularity what is sought. Defendant's objections are without merit, and certainly no justification to refuse to produce the requested relevant documents. The discovery act is broadly interpreted. Greyhound Corp. v. Super. Ct. (Clay) (1961) 56 Cal.2d 355, 384. Generally, "any party may obtain discovery regarding any subject matter involved ... if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence." CCP § 2017.010. Given the broad standard of discovery within the state of California, Plaintiff confidently contends that Defendant's knowledge of other individuals complaining of the same defects or conditions for which Plaintiff presented the vehicle are relevant. In West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal. 2d 407, the Supreme Court discussed the meaning of the terms "burden" and "oppression." The Court held that burden alone is an insufficient basis to object to discovery because all discovery imposes some burden on the responding party. See, Id. at 417, 418. In addition, any objection based upon burden "must be sustained by evidence showing the quantum of work required" to respond to the discovery. See, Id. at 417. Similarly, an objection based on oppression must be based on a showing "either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the results sought." See, Id. Infom1ation about other similar vehicle complaints may demonstrate a defect or nonconfom1ity, or show when it arose, and may also demonstrate Defendant's knowledge of widespread warranty problems and Kia's failure to act despite this knowledge. The Court of Appeals recently addressed a manufacturer's argument that evidence of other vehicles was prejudicial and irrelevant. See, Don/en v. Ford Motor Co. (2013) 217 Cal.App.4th 138. The Court held: "other vehicles testimony was not unduly prejudicial. It did not concern simply other vehicles. It was limited to the (defective component) in Plaintiffs truck and other vehicles. (Plaintiffs expert) described what Ford itself had done to notify dealers and technicians about problems with this ( defective component) model. Thus, everything about which he testified that applied to other vehicles applied equally to Plaintiffs vehicle. Such evidence certainly was probative and not unduly prejudicial." See, Id. at 154. Don/en is not an outlier case. In Doppes v. Bentley Motors Inc. (2009) 174 Cal.App.4th 697, the trial ordered production of "repair invoices or other records of odor reduction work and/or odor repair on all Bentleys for model years 1999 to 2006, all documents recording 18 approval for installation of odor reduction kits for model years 1999 to 2006, all documents denying approval for installation of odor reduction kits for model years 1999 to 2006, any correspondence ( other than email) from Bentley dealers to Bentley USA or UK regarding customer odor complaints, .. and all other documents of any description referring or relating to the odor problem or complaints of odor in Bentley automobiles for model years 1999 to 2006." The Court of Appeal upheld the trial court's orders. Additionally, information about other similar vehicle complaints are relevant to refute Defendant's claims that Plaintiff or others, aside from Defendant, are responsible for the vehicle's problems, as alleged in Defendant's affirmative defenses claiming that Plaintiff and/or others misused or abused the vehicle, or engaged in unauthorized or unreasonable use of the subject vehicle. Under any interpretation, the documents that Plaintiff seeks are "reasonably calculated to lead to admissible evidence," which is the standard that governs here. Accordingly, the documents sought by Plaintiff are certainly discoverable, as they are "reasonably calculated to lead to the discovery of admissible evidence." CCP § 2017.010; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402. Plaintiff may also prove that Defendant willfully refused to buy back the vehicle despite knowing that it was legally obligated to do so, and if so, the Court may impose civil penalties against Defendant. Further responses and production are therefore needed for Request Nos. 37 through 42. Next, Requests for Production Nos. 43 and 44 seek the Pinpoint tests including codes retrieved, and the wiring diagrams for any systems related to the subject vehicle's concerns, respectively. Defendant asserted objections and privilege claims for each but failed to provide privilege logs or fully explain the objections. These documents are necessary for Plaintiffs experts to assess and understand the claims and defenses involved in the case for the specific problems and concerns involved. Please further respond and produce the documents. Plaintiffs Request for Production of Documents, No. 45, seeks production of all documents related to repair procedures performed on the subject vehicle. Defendant continues use the same frivolous objections. This is obviously nonresponsive to Plaintiffs Request. Repair procedures include all instructions, directives, guidelines, procedures for how to actually fix the vehicle. Plaintiff seeks only those documents related to repair procedures that were actually performed on the subject vehicle. Please review Plaintiffs Request No. 45 carefully and provide a further response and corresponding production of documents. Request Nos. 46 and 47 seek the As-Built data and the VIN digit breakdown documents. Like Nos. 43 and 44, Defendant's responses are insufficient, and these documents are relevant and nonprivileged. Thus, further responses and production should be forthcoming. Plaintiffs Requests for Production, Nos. 48 and 49, seek all TSBs, and recalls, applicable to the subject vehicle. Defendant has not produced a single TSB or recall in this case and Plaintiff is entitled to the full set of those that apply to the subject vehicle, whether or not they were performed. This is the discovery stage and the standard of relevance is broad, as discussed earlier. 19 Request Nos. 50 and 51 seek any repair 0r diagnostic procedures that were consulted during the completion of repairs on the vehicle, in addition t0 repair procedures that were actually performed. In response to these requests, Defendant has raised the same frivolous objections that have been soundly addressed throughout this letter. Please withdraw your obj actions and provide further reSponses and accompanying document production. As such, Plaintiff expects further, verified responses t0 the Requests for Production propounded 0n Defendant. Thank you. REQUESTED ACTION Please provide further, verified responses within seven (7) days 0f the date 0f this letter. If you require additional time t0 respond, then please advise and I Will accommodate any reasonable request and postpone consideration 0f filing any motions t0 compel. As you know, Plaintiff does not yet have a deadline to file motions since you have yet t0 serve verifications. If, however, Defendant fails t0 provide further responses as requested herein, 0r t0 otherwise respond, then Plaintiff will have no other alternative but t0 file motions t0 compel, reserving all rights t0 seek costs and sanctions as appropriate. I hope t0 avoid burdening the court with any discovery disputes and therefore, I 100k forward t0 resolving this directly without court intervention. Very Truly Yours, THE BARRY LAW FIRM 5/ / Troy R. Candiotti, Esq. EXHIBIT 4 I THE Main Office BARRY 11845 WC Olympic Boulevard Suite 1270 L AW Los Angeles, CA 90064 Telephone (310) 684-5859 O Facsimile (310) 862-4539 PIRM tcandiotti@mylemonrights.com September 29, 2020 VIA U.S. MAIL AND E-MAIL T0: DANIELLE@LEHRMANLAWGR0UP.C0M Danielle N. Duarte, Esq. Lehrman Law Group 12121 Wilshire Blvd, Suite 1300 Los Angeles, CA 90025 Re: Bryan Thuerk v. Kia Motors America, Inc. Case N0: 20CV3645 78 Dear Ms. Duane: This letter serves as a follow-up to my July 30, 2020 meet and confer letter to you regarding Defendant’s deficient discovery responses, and lack of verifications, t0 Plaintiff’s first set of written discovery responses. Despite my July 30, 2020 letter requesting verifications and a response within seven (7) days 0f the date 0f that letter, I still have not heard from you. Please note that if I do not receive a response within 7 days from the date 0f this letter, I must then assume Defendant is not interested in resolving this discovery dispute informally. Consequently, Plaintiff will be forced t0 file Motions to Compel Further Responses and a Request for Sanctions. I hope this will not be necessary. I 100k forward to hearing from you. Thank you for your courtesy and cooperation. Very Truly Yours, THE BARRY LAW FIRM G Troy R. Candiotti, Esq. CC: klehrman@lehrmanlawgroup.com dvillegas@lehrmanlawgroup.com EXHIBIT 5 I \DOOQO‘NUI-PUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LEHRMAN LAW GROUP KATE S. LEHRMAN [Bar No. 123050] JACQUELINE BRUCE CHINERY [Bar N0. 187544] DANIELLE N. DUARTE [Bar No. 308402] 12121 Wilshire Boulevard Suite 1300 Los Angeles, CA 90025 (310) 917-4500 (310) 917-5677 (FAX) Attorneys for Defendant SUBARU OF AMERICA, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA Case No. 20CV364578 [Filedz March 3, 2020] BRYAN THUERK, an individual, Plaintiff, Hon. Thang M. Barrett V. Dept. 21 KIA MOTORS AMERICA, INC, a California Corporation; and DOES 1 through 20, inclusive, DEFENDANT KIA MOTORS AMERICA, INC.’S FURTHER RESPONSES TO PLAINTIFF’S REQUEST FOR vvvvvvvvvvvvvvvvv Defendants. ADMISSIONS, SET ONE DISCOVERY CUT-OFF: NONE MOTION CUT-OFF: NONE TRIAL DATE: NONE PROPOUNDING PARTY: PlaintiffBRYAN THUERK RESPONDING PARTY: Defendant KIA MOTORS AMERICA, INC. SET NO.: ONE Defendant Kia Motors America, Inc. (“KMA”) hereby responds t0 Plaintiff” s Request for Admissions, Set No. One. These responses are made subject t0 the General Objections and any specific objection contained within an individual response. /// 301.224.DND - 00529952.DOCX 1 20CV364578 DEFENDANT KIA MOTORS AMERICA, INC.’S FURTHER RESPONSES TO PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE \ooouoxm-thH NNNNNNNNNb-‘Hb-tr-AHL-Ar-dr-tr-dy-A OOQONM$WNHOKOOOQONMQUJNHO So far as KMA is aware, according to the information available t0 KMA at the present time, these responses are complete and correct. KMA reserves the right to object t0 future discovery on the same or related matters and does not waive any objection by providing the information reflected in these responses. KMA further reserves the right to object to the admissibility of any of these responses or the documents produced or related matters, in whole or in part, at trial in this action, on any grounds, including, but not limited t0, materiality, relevance and privilege. PRELIMINARY STATEMENT AND GENERAL OBJECTIONS The subject of Plaintiff’s Complaint is a 2019 Kia Stinger, VIN: KNAEZSLA9K6051 1 10, Which was purchased/leased on 0r about April 8, 2019. KMA did not design or manufacture the subject vehicle. KMA objects to Plaintiff s request to the extent they seek information concerning products other than the subject product in suit, vehicle components, systems or characteristics that are not described or identified with reasonable particularity in the Complaint and Which are not the subject of Plaintist defect allegations. Such requests are overly broad, unduly burdensome and seek information which is not relevant or reasonably calculated to lead to the discovery of admissible evidence in this case. KMA objects to Plaintiff s request to the extent they may call for the production of proprietary information, trade secrets or other confidential business and commercial information, public dissemination ofwhich would place KMA at a commercial disadvantage. KMA objects to Plaintiff s request t0 the extent these requests can be interpreted to seek information protected by the attorney/client privilege, the consulting expert privilege or the work product doctrine. In responding to these requests, KMA assumes Plaintiff does not seek information or documents protected by the attomey/client privilege and/or work product doctrine, and KMA hereby preserves all such privileges. KMA objects t0 the instructions and definitions in Plaintiff s Requests for Admission to the extent they are overly bfoad, unduly burdensome and seek to impo se duties or requirements beyond those required by the Code of Civil Procedure. 301 .224.DND - 00529952.DOCX 2 20CV364578 DEFENDANT KIA MOTORS AMERICA, INC.’S FURTHER RESPONSES TO PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE AWN \DOOQONU‘I 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Finally, neither the failure to specifically mention a general objection in any response nor the specification of any other objection shall be deemed a waiver of any objections to that discovery request. Without waiving the foregoing objections, and incorporating them into each 0f the following requests, KMA responds t0 Plaintiff’s Requests for Admission, Set No. One, as follows: FURTHER RESPONSE TO RE UEST FOR ADMISSION REQUEST FOR ADMISSIONS NO. 1: Plaintiffpurchased the SUBJECT VEHICLE. (“SUBJECT VEHICLE” shall refer to the motor vehicle that is the subject 0f this lawsuit as identified in Plaintiff’s Complaint filed in this action.) RESPONSE: KMA objects to this request as follows: 1. This Request is not fiJll and complete in and of itself. 2. KMA is the distributor of Kia vehicles, not a retail seller. FURTHER RESPONSE: Subject to and without waiving its previously asserted objections, KMA further responds to this Request as follows: Based upon information and belief, KMA admits this Request. REQUEST FOR ADMISSIONS N0; The SUBJECT VEHICLE was a new motor vehicle for purposes 0f the Song Beverly Warranty Act. RESPONSE: KMA objects to this request as follows: 1. This Request is not full and complete in and of itself. 2. This Request is vague and ambiguous as t0 the phrase “new motor vehicle.” 3. KMA is the distributor of Kia vehicles, not a retail seller. //// 301 .224.DND - 00529952.DOCX 3 20CV364578 DEFENDANT KIA MOTORS AMERICA, INC.’S FURTHER RESPONSES TO PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE $UJN \OOO‘QQLI] 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FURTHER RESPONSE: Subject t0 and without waiving its previously asserted objections, KMA further responds to this Request as follows: A reasonable inquiry concerning the matter in this request has been made, and the information known or readily obtainable is insufficient to enable KMA t0 admit the matter. KMA lacks sufficient information to admit 0r deny if the vehicle was a "new motor vehicle" pursuant to the Song-Beverly Act as KMA has not deposed Plaintiff. REQUEST FOR ADMISSIONS NO. 3: In connection with the purchase 0f the SUBJECT VEHICLE, Defendant KIA MOTORS AMERICA, INC, gave a written warranty concerning the vehicle. RESPONSE: KMA objects to this request as to the phrase “gave a written warranty” as vague and ambiguous. FURTHER RESPONSE: Subject to and without waiving its previously asserted objections, KMA filrther responds to this Request as follows: KMA admits that the subject vehicle is warranted pursuant to the terms of the written limited express warranty found in the Warranty and Consumer Information Manual for the subject vehicle Which should have accompanied the vehicle when it was originally sold/leased as a new vehicle. REQUEST FOR ADMISSIONS N0. 4: The SUBJECT VEHICLE contained a NONCONFORMITY that substantially impaired the use, value, or safety of the SUBJECT VEHICLE to the Plaintiff. (The term “NONCONFORMITY” as used in these interrogatories, shall refer to each nonconformity in Which substantially impairs the use, value, or safety of the vehicle.) RESPONSE: KMA objects to this request 0n the grounds it is vague, ambiguous, overly broad, argumentative and presupposes the existence of a “nonconformity.” KMA also objects to the use of the term "nonconformity," as it is argumentative and assumes facts not in evidence. KMA 301.224.DND - 00529952.DOCX 4 20CV364578 DEFENDANT KIA MOTORS AMERICA, INC.’S FURTHER RESPONSES TO PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE KOOOQC‘xUl-PUJNH NNNNNNNNNr-Ar-ir-dr-Ar-‘p-ap-‘p-‘HH WNQMhWNHOOWQQMbWNHO attributable to the use by the Plaintiff before discovery 0f the NONCONFORMITY. RESPONSE: KMA objects to this request on the grounds it is vague, ambiguous, overly broad, argumentative and presupposes the existence 0f a “nonconformity.” KMA also objects to the use 0f the term "nonconformity," as it is argumentative and assumes facts not in evidence. KMA objects to this request as vague, ambiguous and argumentative to the extent that it improperly implies that KMA was under an obligation t0 repurchase the subject vehicle. Subject to and without waiving its previously asserted objections, KMA further responds to this Request as follows: KMA admits that it has not refunded any money to Plaintiff but denies that any factual or legal basis existed under which Plaintiff is entitled to a refimd. REQUEST FOR ADMISSIONS NO. 1;; Plaintiff incurred damages as a result of the Defendant’s conduct. RESPONSE: KMA objects t0 this request on the grounds it is vague, ambiguous and overly broad, and not reasonably calculated to lead to the discovery of admissible evidence. KMA further objects to this Request t0 the extent that it calls for the premature discovery of expert witness information. Further, it violates the attorney-client privilege and work product doctrine. FURTHER RESPONSE: Subject to and without waiving its previously asserted objections, KMA further responds to this Request as follows: KMA denies this Request. REQUEST FOR ADMISSIONS N0. 13: Plaintiff contacted Defendant regarding his VEHICLE. RESPONSE: KMA objects t0 this request 0n the grounds it is vague, ambiguous and overly broad as t0 time and scope. 301 .224.DND - 00529952.DOCX 8 20CV364578 DEFENDANT KIA MOTORS AMERICA, INC.’S FURTHER RESPONSES TO PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE \OOOQGUl-hWNp-a NNNNNNNNNr-AHHHr-IHr-Ar-dr-tp-A OOQOxm-thh-aoxoooqoxmbmwh‘o FURTHER RESPONSE: Subject to and without waiving its previously asserted objections, KMA further responds to this Request as follows: Admit. REQUEST FOR ADMISSIONS NO. 16: Defendant does not have a qualified dispute resolution process that conforms with Civil Code§ 1973.22. RESPONSE: KMA objects to this request as vague, ambiguous, overly broad, argumentative, and assumes facts not in evidence. KMA further objects to this Request to the extent that it calls for the premature discovery of expert witness information. Further, it violates the attorney-client privilege and work product doctrine. FURTHER RESPONSE: Subject to and without waiving its previously asserted objections, KMA further responds to this Request as follows: KMA denies this Request. RESQUEST FOR ADMISSIONS NO. 17: Defendant has never noted any evidence of misuse 0r abuse of the SUBJECT VEHICLE by Plaintiff. RESPONSE: KMA objects to this request as vague, ambiguous, overly broad, argumentative, and assumes facts not in evidence. KMA filrther objects to this Request to the extent that it calls for the premature discovery of expert witness information. Further, it violates the attorney-client privilege and work product doctrine. FURTHER RESPONSE: Subject to and without waiving its previously asserted objections, KMA further responds to this Request as follows: KMA responds that based upon a reasonable inquiry to obtain sufficient information concerning the matter stated in this request, KMA lacks sufficient information and knowledge at this time to admit or den this Re uest. KMA's investigation and discove are continuin .y q YY g 301 .224.DND - 00529952.DOCX 9 20CV364578 DEFENDANT KIA MOTORS AMERICA, INC.’S FURTHER RESPONSES TO PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE KCOOQO‘xUI-hUJNb-a NNNNNNNNNHr-Au-‘Hr-‘Hp-ar-Jp-tl-d WQQMhWNP-‘OQOONONM-PUJNHO REQUEST FOR ADMISSIONS NO. 18: Defendant's service file contains no notations involving suspected misuse 0r abuse of the SUBJECT VEHICLE by Plaintiff. RESPONSE: KMA objects to this request as vague, ambiguous, overly broad, argumentative, and assumes facts not in evidence. KMA further objects t0 this Request t0 the extent that it calls for the premature discovery of expert witness information. Further, it violates the attorney-client privilege and work product doctrine. FURTHER RESPONSE: Subject to and without waiving its previously asserted objections, KMA further responds to this Request as follows: KMA has made a reasonable inquiry to obtain sufficient information concerning the matter stated in this request, but KMA presently lacks sufficient information and knowledge at this time to admit or deny this Request. KMA's investigation and discovery are continuing. REQUEST FOR ADMISSIONS NO. 19: Defendants are currently unaware ofany evidence of misuse or abuse of the SUBJECT VEHICLE by the Plaintiff. RESPONSE: KMA objects to this request as vague, ambiguous, overly broad, argumentative, and assumes facts not in evidence. KMA further objects to this Request to the extent that it calls for the premature discovery of expert witness information. Further, it violates the attorney-client privilege and work product doctrine. FURTHER RESPONSE: Subject to and Without waiving its previously asserted objections, KMA further responds to this Request as follows: KMA has made a reasonable inquiry to obtain sufficient information concerning the matter stated in this request, but KMA presently lacks sufficient information and knowledge at this time to admit 0r deny this Request. KMA's investigation and discovery are continuing. 301 .224.DND - 00529952.D0CX 10 20CV364578 DEFENDANT KIA MOTORS AMERICA, INC.’S FURTHER RESPONSES TO PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE H NNNNNNNNNflr-lI-‘p-Ab-ar-tr-Ar-dl-Ar-a WQQM-fiWNHocmflo‘xm-hWNHO \OOOQQU‘I-bUJN REQUEST FOR ADMISSIONS NO. 20: Plaintiff has never caused damage to the SUBJECT VEHICLE by misusing or abusing it. RESPONSE: KMA objects to this request as vague, ambiguous, overly broad, argumentative, and assumes facts not in evidence. KMA further objects t0 this Request t0 the extent that it calls for the premature discovery of expert witness information. Further, it violates the attorneywlient privilege and work product doctrine. FURTHER RESPONSE: Subject t0 and without waiving its previously asserted objections, KMA filrther responds to this Request as follows: KMA has made a reasonable inquiry to obtain sufficient information concerning the matter stated in this request, but KMA presently lacks sufficient information and knowledge at this time to admit or deny this Request. KMA's investigation and discovery are continuing. REQUEST FOR ADMISSIONS NO. 21: The SUBJECT VEHICLE has been out of service by reason ofrepair ofthe NONCONFORMITY by YOU for a cumulative total ofmore than 30 calendar days since delivery of the vehicle to Plaintiff. RESPONSE: KMA objects to this request 0n the grounds it is vague, ambiguous, overly broad, argumentative and presupposes the existence of a “nonconformity.” KMA also objects to the use of the term "nonconformity," as it is argumentative and assumes facts not in evidence. FURTHER RESPONSE: Subject to and without waiving its previously asserted objections, KMA further responds to this Request as follows: KMA denies this Request. REQUEST FOR ADMISSIONS N0. 22: The Song-Beverly Warranty Act does not require a Consumer t0 specifically request either a repurchase 0r a replacement in order t0 trigger KIA MOTORS AMERICA, INC.’s obligations under Song-Beverly Consumer Warranty Act. 301.224.DND - 00529952.DOCX 1 1 20CV364578 DEFENDANT KIA MOTORS AMERICA, INC.’S FURTHER RESPONSES TO PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE \OOOQQUI-bUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESPONSE: KMA objects t0 this request as being vague, ambiguous, overly broad, an incomplete hypothetical, assumes facts not in evidence and improperly seeks a legal conclusion. FURTHER RESPONSE: Subject t0 and without waiving its previously asserted objections, KMA further responds to this Request as follows: KMA cannot admit or deny this Request on the grounds that is unintelligible, vague and ambiguous. REQUEST FOR ADMISSIONS NO. 23: KIA MOTORS AMERICA, INC. will only investigate whether a vehicle should be repurchased or replaced if a customer specifically requests that their vehicle be repurchased 0r replaced. RESPONSE: KMA objects t0 this request as being vague, ambiguous, overly broad, argumentative, an incomplete hypothetical and assumes facts not in evidence. KMA further objects in that it seeks information protected by the attorney-client privilege and work product doctrine privilege. FURTHER RESPONSE: Subject to and Without waiving its previously asserted objections, KMA further responds to this Request as follows: KMA states that it analyzes the facts and claims 0n a case by case basis before making a decision to repurchase a vehicle. KMA denies the remainder of this request. REQUEST FOR ADMISSIONS NO. 24: Plaintiff is defined as a qualifying CONSUMER as defined by purposes of the Song Beverly Warranty Act.W KMA objects to this request 0n the grounds it is vague, ambiguous, overly broad, improperly seeking a legal conclusion and argumentative since the Song-Beverly Act does not define “qualifying Consumer” or “Consumer.” KMA is unable t0 admit 0r deny this Request because it is unintelligible, vague and ambiguous. 3o 1 .224.DND - 00529952DOCX 12 20CV364578 DEFENDANT KIA MOTORS AMERICA, INC.’S FURTHER RESPONSES T0 PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE \OOOflOM-bUJNr-a NNNNNNNNNt-‘I-‘r-ap-Ar-dr-Ar-AHr-‘i-a 00 \J.0\ L11 A W N H O \O m \1 O‘N ()1 b U3 N H O SUBJECT VEHICLE at Stevens Creek Kia on September 13, 2019 constituted a substantial impairment ofuse. RESPONSE: KMA objects to this request as follows: 1. The phrase “sunroofrattling noise concerns” is vague, ambiguous, and unintelligible. 2. This Request is a premature request for expert opinion. (See Code Civ. Proc., § 2038.210, et seq.) FURTHER RESPONSE: Subject to and without waiving its previously asserted objections, KMA further responds to this Request as follows: Denied. REQUEST FOR ADMISSIONS NO. 31: Admit that the sunroofrattling noise concern by which the Plaintiff presented the SUBJECT VEHICLE at Stevens Creek Kia 0n September 13, 2019 constituted a substantial impairment of value. RESPONSE: KMA objects t0 this request as follows: 1. The phrase “sunroofrattling noise concerns” is vague, ambiguous, and unintelligible. 2. This Request is a premature request for expert opinion. (See Code CiV. Proc., § 2038.210, et seq.) REQUEST FOR ADMISSIONS NO. 32: Admit that the sunroof rattling noise concern by which the Plaintiffpresented the SUBJECT VEHICLE at Stevens Creek Kia 0n September 13, 2019 constituted a substantial impairment 0f safety.W KMA objects to this request as f011ows: 1. The hrase“sunroofrattlin noise concerns” is va e, ambi ous and9 30 1 .224.DND - 00529952.DOCX 16 20CV364578 DEFENDANT KIA MOTORS AMERICA, INC.’S FURTHER RESPONSES TO PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE \OOOQQUiglJJNr-d NNNNNNNNNr-‘Hr-Ar-dp-ir-Ar-Ib-tp-ir-d OOQQM-PUJNP-‘OCOOQONM-hWNP-‘O 1. The phrase “trunk rattling noise concerns” is vague, ambiguous, and unintelligible. 2. This Request is a premature request for expert opinion. (See Code Civ. Proc., § 2038.210, et seq.) FURTHER RESPONSE: Subject t0 and without waiving its previously asserted objections, KMA further responds to this Request as follows: Denied. REQUEST FOR ADMISSIONS N0. 44: Admit that the trunk rattling noise concern by Which the Plaintiff presented the SUBJECT VEHICLE at Winn Kia of Fremont on January 13, 2020 constituted a substantial impairment of safety. RESPONSE: KMA objects to this request as follows: 1. The phrase “trunk rattling noise concerns” is vague, ambiguous, and unintelligible. 2. This Request is a premature request for expert opinion. (See Code CiV. Proc., § 2038.210, et seq.). FURTHER RESPONSE: Subject to and without waiving its previously asserted objections, KMA filrther responds to this Request as follows: Denied. DATED: November 10, 2020 LEHRMAN LAW GROUP KATE S. LEHRMAN JACQUELINE BRUCE CHINERY DANIELLE N. DUARTE By: /s/ (Daniefk W. ®uarte Danielle N. Duarte Attorneys for Defendant KIA MOTORS AMERICA, INC. 301.224.DND - 00529952.DOCX 22 20CV364578 DEFENDANT KIA MOTORS AMERICA, INC.’S FURTHER RESPONSES TO PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE \OOOQQMhUJNb-d NNNNNNNNNb-‘b-dl-tp-dh-iy-AHHHH oofloxm-bwmwooooumm-mer-JO VERIFICATION TO FOLLOW 301.224.DND - 00529952.DOCX 23 20CV364578 DEFENDANT KIA MOTORS AMERICA, INC.’S FURTHER RESPONSES TO PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE \OOOQONU‘I-bUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES ) I am employed in the County ofLos Angeles, State of California. I am over the age 0f 18 and not a party to the within action; my business address is 12121 Wilshire Blvd., Suite 1300, Los Angeles, CA 90025. On November 10, 2020, I served, in the manner indicated below, the foregoing document described as: DEFENDANT KIA MOTORS AMERICA, INC.’S RESPONSES TO PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE on the interested parties in this action by placing true copies thereof, enclosed in sealed envelopes, at Los Angeles, CA addressed as follows: SEE ATTACHED SERVICE LIST [] BY OVERNIGHT DELIVERY: I caused such envelopes to be delivered by courier, with next day service, to the offices of the addressees. (C.C.P. § 1013(c)(d).) BY FACSIMILE: (C.C.P. § 1013(e)(t).) BY MAIL: I caused to be delivered by U.S. mail by placing a true copy thereof enclosed in sealed envelopes addressed as stated above. I am “readily familiar” with the firm’s practice of collection and processing documents for mailing. Under that practice it would be deposited with the U.S. postal service 0n that same day with postage thereon fully prepaid in the ordinary course of business. U BY PERSONAL SERVICE: I caused such envelopes to be delivered by hand to the offices of the addressees. (C.C.P. § 1011(a)(b).) BY ELECTRONIC MAIL: I transmitted such document from Los Angeles, California, to the electronic mail address maintained by the person(s) on the SERVICE LIST as last indicated by that person on a document that he or she has filed in the above-entitled cause and served on this party. (C.C.P. § 1010.6(a)(6).) Per agreement and per state and local stay at home Orders re COVID19. I declare under penalty 0f perjury under the laws of the State of California that the above is true and correct. Executed on November 10, 2020, at Los Angeles, California. /s/ Tm Swan Wuqé Tra’Shon Pugh 301 .224.DND - 00529952.D0CX 24 20CV364578 DEFENDANT KIA MOTORS AMERICA, INC.’S FURTHER RESPONSES T0 PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE \OOOflQUI-PUJN 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 PROOF OF SERVICE LIST KIA MOTORS AMERICA, INC./THUERK, BRYAN (K070-224)(301 .224) Case No. 20CV364578 Page 1 David N. Barry, Esq. Attorneys for Plaintiff THE BARRY LAW FIRM ' BRYAN THUERK 11845 West Olympic Boulevard Suite 1270 Los Angeles, CA 90064 (310) 684-5859 (310) 862-4539 (FAX) dbarryg’glmylemonrightscom Jeramy Templin: jtemplin@rnylemonrights.corn Mela Kelly: mkelly@mylemonrights.com Ivy Flores: iflores@mylemonrights.com 301 .224.DND - 00529952.DOCX 25 20CV364578 DEFENDANT KIA MOTORS AMERICA, INC.’S FURTHER RESPONSES TO PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE EXHIBIT 6 I LehrmanLawfiruup NE 12121 WILSHIRE BOULEVARD-SUITE 1300 [WTURNEWS AT LAW FACSIMLLE- (310)917-5677 7 . LOS ANGELES, CALIFORNIA 900~5 www. lehrmanlawgroup .com December 9, 2020 Via U.S. Mail David N. Barry, Esq. THE BARRY LAW FIRM 11845 West Olympic Boulevard Suite 1270 L03 Angeles, CA 90064 Re: Bryan Thuerk v. Kia Motors America, Inc. Dear Counsel: Enclosed please find defendant Kia Motors America, Inc.’s Verifications to plaintiff s From Interrogatoriesa Request for Production 0f Documentsa Request for Admissions and Special Interrogatories, set one. Sincerely yours, é ‘2. 4% A ‘3n I .~ v 4- . ,2» . ~ o7: .5,» ,9 M;Uv‘ozf?’ wiflxzflwyflar Brian Entzminger Paralegal Enclosures 301 .213.BT - OO479281DOCX CORPORATE VERIFICATION Bryan Thuerk vs. Kia Motors America, Inc. Case No. 20CV364578, Santa Clara County, California l, DEBBIE AVALOS, declare: i am a paraiegal within the legal department of KIA MOTORS AMERICA, iNC., and l am authorized to make this verification for and on behalf of KIA MOTORS AMERlCA, lNC. l have read and am famiiiar with the contents of the foregoing document entitled DEFENDANT, KIA MOTORS AMERICA, |NC.’S FURTHER RESPONSES TO PLAINTIFF’S REQUEST FOR ADMISSIONS, SET ONE, and l hereby verify that the contents of said Responses are true and correct to the best of my own knowledge, except t0 those matters which are stated on information and belief, and as to those matters | beiieve them to be true. l declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at Long Beach, California on this 8th day of December, 2020. Deborah Avatar DEBBIE AVALOS Kia Motors America, Inc. 301.224. - OOS32858.DOCX EXHIBIT 7 I THE Main Office BARRY 11845 W". Olympic Boulevard Suite 1270 L AW Los Angeles, California 90064 Telephone (310) 684-5859 O Facsimile (3'10) 862-4539 FIR J \ / I ewhitman@mylem0nrights.com January 4, 2021 VIA EMAIL AND U.S. MAIL: .fiafiieééeg‘mghrmmfiézmgwmgxmm; ximrm“;ichcyWEcmgmmwwa gatiumz ‘3 MM zwmawgwayww Kate S. Lehrman, Esq. Danielle N. Duarte, Esq. Jacqueline Chinery, Esq. Lehrman Law Group 12121 Wilshire Boulevard, Suite 1300 Los Angeles, CA 90025 Re: Bryan Thuerk v. Kia Motors America, Inc. Case N0: 20CV3645 78 Dear Counsel: I am in receipt 0f your Client, Defendant Kia Motors America, Inc’s (“KMA”) unverified supplemental responses t0 Plaintiff’s first set of discovery requests, served by electronic mail 0n November 10, 2020. I note that KMA’S responses were not verified until December 8, 2020, which was served by mail on December 9, 2020. This letter serves as my effort to meet and confer with you to informally resolve discovery disputes created by deficiencies in those responses, as required by the Code Q/Civil Procedure. Plaintiff would like t0 address deficiencies in the served responses. As a reminder, the discovery act is broadly interpreted. Greyhound Corp. v. Super. Cl. (Clay) (1961) 56 Ca1.2d 355, 384. Generally, ”any party may obtain discovery regarding any subject matter involved if the matter either is itself admissible in evidence 0r appears reasonably calculated t0 lead t0 the discovery 0f admissible evidence." CCP § 20] 7,010. DEFENDANT'S FURTHER RESPONSES TO PLAINTIFF'S FORM INTERROGATORIES Upon review 0f KMA’S further responses t0 Form Interrogatories, Defendant chose not t0 provide a further response t0 Form Interrogatory 1.1, and thus Defendant’s response t0 Form Interrogatory 1.1, which asks you to state the name, address, telephone number, and relationship t0 you 0f each person who prepared 0r assisted in the preparation 0f these interrogatories, remains not code compliant. Defendant's response 1s as follows: "KMA objects to this request on the following grounds: 1. KMA objects to this request because it is overly broad, vague, and ambiguous. In responding to this request, KMA presumes Plaintiff does not seek the discovery of attorney/client communications, nor does Plaintiff seek the discovery of the attorney work product of either in-house or outside counsel. KMA 's responses will be limited with this understanding. 2. This request seeks disclosure of materials tvhich are not reasonable related to the issues presented by the su~ject matter of this litigation and are irrelevant and immaterial, and not reasonably calculated to lead to the discovery of admissible evidence. " KMA must have had someone compile the information on behalf of KMA ( and your office). In accomplishing this task, this individual must have corresponded with individuals that have admissible knowledge of the facts in this case. Plaintiff is entitled to those facts and the testimony of those percipient witnesses and responsive documents. As addressed in our previous meet and confer letter, this response is insufficient and not Code-compliant. Therefore, a further response is necessary identifying the individuals who prepared or assisted in the preparation of the responses. Next, Defendant KMA's further response to Form Interrogatory 12.1 is incomplete. This Interrogatory asks KMA to provide the name, address and telephone number of all witnesses who have knowledge related to the allegations in the Complaint. In response to this Interrogatory, KMA's further response lists a few service advisor names, notwithstanding '(.Sonny," and technician identification numbers, and subsequently incorporated the objections made in KMA's original response. As addressed previously, these objections are baseless and should be withdrawn. Plaintiff is entitled to the identity, by full name and address (as called for by the interrogatory) of the percipient witnesses. Clearly, that information is relevant and readily obtainable by Kia as the work was performed by a KMA-authorized facility. Put more simply, this particular Interrogatory calls for KMA to identify those individuals that KMA intends to call at the time of trial. Here, if KMA intends to potentially call a witness to testify at trial, Plaintiff is entitled to depose that individual. Any attempt to argue that the KMA- authorized dealerships are "third parties" not related to KMA is merely an attempt to obfuscate the issue. Plaintiff does not have the ability to take his vehicle to any service facility to have it repaired under the warranty. Plaintiff must take the vehicle to a KMA-authorized service center- one that certainly has an ongoing operating agreement with KMA. Defendant KMA's relationship with its associated service centers is not arm's-length. 2 As mentioned previously, in order to obtain the identity of the servicing technicians, arguably, KMA merely places a phone call to the dealership. Plaintiff would be required to direct a subpoena duces tecum to the dealership with the hopes of obtaining sufficient identifying information to later serve a deposition subpoena. Plaintiff cannot merely serve the servicing technicians with a subpoena for personal appearance to testify based on the technician identification number alone. The same goes for the service advisor "Sonny" from Winn Kia of Fremont. Notwithstanding the issue of Plaintiff would be unable to properly identify the individual for the subpoena itself, Plaintiff cannot effectuate service of the subpoena on the individual if the person's identity is unknown. See, Cal. Code Civ. Proc. §2020.220(b )(2) (Providing that personal service is required to command attendance.) It is undeniable that the Plaintiff is entitled to obtain that information in his trial preparation. It is equally undeniable that the court, if called upon to intervene, will not believe that requiring KMA to contact its own dealers for material information is unduly burdensome to the extent where Kia can rely on Section 2030.230 in formulating its response, keeping in mind that ""all discovery imposes some burden on the responding party." West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal. 2d 407, 41 8. A further response is therefore required. With respect to Defendant's further response to Form Interrogatory 12.3, KMA's further response is deficient. The interrogatory asks KMA whether KMA or anyone acting on their behalf obtained a written or recorded statement from any individual concerning the incident, and if so, then KMA is to provide: (a) The name, ADDRESS, and telephone number of the individual from whom the statement was obtained; (b) The name, ADDRESS, and telephone number of the individual who obtained the statement; ( c) The date the statement was obtained; and ( d) The name, ADDRESS, and telephone number of each PERSON who has the original statement or copy. Defendant's further response simply states "No." KMA appears to have forgotten, or omitted, that each time Plaintiff presented the subject vehicle to an authorized KMA repair facility, the service advisor made a written recording of Plaintiff's statements as to the issues that were affecting the subject vehicle. Also, each line item in the repair orders, is a written statement made by the repairing technician, concerning repairs made to the subject vehicle. All of which would be considered a "written or recorded statement from any individual concerning the incident". Moreover, if there are any records in the Consumer Assistance Center Case Reports (""CACCR"), these would certainly be considered written or recorded statements. In any event, Defendant KMA's written response to Form Interrogatory 12.3 is incomplete. KMA's further response to Form Interrogatory 12.6 is also deficient, for the same reasons as KMA's further response to Form Interrogatory 12.3. I would certainly think that the repair orders and any CACCR's would fall into this category. Accordingly, a further response to Form Interrogatory No. 12.6 is required. 3 Moving on t0 Defendant’s further response to Form Interrogatory 15.1, this response remains deficient as well. Form Interrogatory 15.1 asks you t0 identify each denial 0f a material allegation and each special 0r affirmative defense in your pleadings and for each: (a) State all facts upon which you base the denial 0r a special 0r affirmative defense; (b) State the names, addresses and telephone numbers 0f all persons who have knowledge of those facts; and (c) Identify all documents and other tangible things that support your denial 0r a special 0r affirmative defense, and state the name, address, and telephone number 0f the person wha has each document Defendant Kia Motors America, Inc. pled multiple affirmative defenses. However, a review the further response to Form Interrogatory 15.1 still fails t0 fully comply With the subpart requirements for each 0f your separate affirmative defenses, for the same reason that Defendant”s further response t0 Form Interrogatory 12.1 is deficient. For all these reasons, a further response t0 Form Interrogatory 15 .1 is required. The further response t0 Form Interrogatory 17.1 is also deficient. For each and every response t0 a Request for Admission that is not an unqualified admission, you are to state the number of the request, all facts upon which you base your response, the names, addresses and telephone numbers ofall persons that have knowledge 0f those facts, identify all documents and other tangible things that support your response? and the name, address and telephone number 0f the person who has each document 0r thing. The further response fails for the same reasons as KMA’S further response to Form Interrogatory 12. 1. Thus, a further, verified response is required. In summary, Plaintiff expects further, verified responses t0 Form Interrogatory Nos. 1.1, 12.1, 12.3, 12.6, 15.1, and 17.1. DEFENDANT'S FURTHER RESPONSES TO PLAINTIFF'S REQUESTS FOR ADMISSION As previously stated, Requests for Admission are not "true" discovery. Requests for admission are n01 discovery devices, per $6. Burch v. Gombos (2000) 82 Ca1.App.4th 352, 359. They are designed to set t0 rest, triable issues of fact with the ultimate goal 0f expediting trial and the unnecessary expenses of proof at trial. Cembmok v. Superior Court (1961) 56 Ca1.2d 423; St. Mary v. Superior Court (2014) 223 Ca1.App.4th 762; Hillman v. Stullz (1968): 263 Cal.App2d 848, 885. ("They were enacted to eliminate the necessity 0f putting 0n formal proof 0f essentially uncontroverted facts, not as a substitute for trial 0f genuinely disputed facts."). Accordingly, when a litigant "toysj" and continues t0 “toy” with the process by evading a factual proposition by avoiding the materials that provides the response to such requests, it defeats the purpose and the function of the requests and unduly forces plaintiff to waste time, money and energy proving factual propositions that can and should be readily admitted. A party "cannot plead ignorance to information which can be obtained from sources under his control." Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782 [Emphasis added.] [If a party is unable to fully answer it should set forth the efforts made to secure the information.] Id. Request No. 2 asked Defendant to admit that the subject vehicle was a new motor vehicle, for purposes of Song-Beverly Warranty Act. Defendant's further response appears to plead ignorance as the rationale for being unable to admit or deny the Request as phrased. Defendant was able to admit with respect to Request for Admission No. 1, and thus Defendant must further respond to No. 2 to admit or deny that the subject vehicle was new for purposes of the Song-Beverly Consumer Warranty Act, for the same reasons it admitted Request for Admission No. 1. Request for Admission No. 14 asks KMA to admit or deny whether they conducted an investigation and/or inquiry into whether the subject vehicle should be repurchased pursuant to the Song-Beverly Act as a result of contact by Plaintiff. KMA' s further response consists only of objections. Defendant's objection as "vague and ambiguous" is improper. The Defendant can answer as it understands the Request, in the spirit of Cembrook, and fails to substantiate the "'overly broad" objection under Burke. Also, KMA's further response to Request for Admission No. 13 admits that Plaintiff contacted KMA regarding the subject vehicle. Thus, the response to Request for Admission No. 14 should also be supplemented to reflect Defendant's further response to Request for Admission No. 13. Requests for Admissions Nos. 17, 18, 19, and 20, relate to whether Defendant noted any evidence of misuse or abuse of the subject vehicle by Plaintiff, whether Defendant's service file contains notations involving suspected misuse or abuse of the subject vehicle, whether Defendant is currently unaware of any evidence of misuse or abuse of the subject vehicle by the Plaintiff, and whether Plaintiff caused damage to the subject vehicle by misusing or abusing it. Defendant's further responses claimed that after a reasonable inquiry, the information presently known or readily obtainable is insufficient to admit or deny these Requests, but failed to explain what was involved, if anything, in its "reasonable inquiry." The responses are disingenuous, inadequate, and simply evasive. The only change KMA made in their further responses was to withdraw the attorney-client privilege and work product doctrine. Defendant has placed these facts directly at issue by asserting Affirmative Defenses in its Answer that contend that Plaintiff and/or others are responsible for any alleged damages due to misuse and abuse by Plaintiff and/or others and related claims. Therefore, Plaintiff has an absolute right to discover facts relating to these defenses. A party "cannot plead ignorance to information which can be obtained from sources under his control." Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782 [Emphasis added.] [If a party is unable to fully answer it should set forth the efforts made to secure the information.] These Requests are straightforward and relate to the past; either KMA's authorized repair facility noted that there was misuse or abuse, or it did not. Defendant's responses given are 5 blatant attempts to avoid responding and may be considered an abuse of discovery should Plaintiff be required to seek judicial intervention. An inability to respond can only be stated where there is a true lack of information available to the responding party. In addition to objections that have already been addressed, Defendant has stated, in its further response to Request for Admission No. 15, that Defendant's awareness of its Song-Beverly obligations is not reasonably calculated to lead to the admission of admissible evidence. This Request is clearly related to the civil penalty component of the Song-Beverly Act, of which Defendant's awareness is a crucial aspect. Defendant made no attempt to provide further response as it did to numerous other Requests for Admission, and as such, Plaintiff asks that Defendant withdraw these objections, and provide further response. In KMA's further response to Request for Admission No. 22, Defendant KMA objects to this request as being vague, ambiguous, and unintelligible, and therefore KMA cannot admit or deny this request KMA's objections are meritless and boilerplate. Defendant KMA has a duty to respond if the nature of the Request is understood, and this Request is straightforward. This information is germane to whether or not KMA complied with the requirements of the Song-Beverly Act, and whether civil penalties are warranted. Accordingly, KMA must provide a further response to this request without these meritless objections. Plaintiffs Request for Admission No. 24 asked Defendant to admit that Plaintiff is defined as a qualifying CONSUMER as defined for purposes of the Song Beverly Warranty Act. Defendant asserted boilerplate objections, and claimed that this is unintelligible, vague and ambiguous. As stated at the beginning of this section, Requests for Admission are not "true" discovery. Requests for admission are not discovery devices, per se. Burch v. Gombos (2000) 82 Cal.App.4th 352, 359. They are designed to set to rest, triable issues of fact with the ultimate goal of expediting trial and the unnecessary expenses of proof at trial. Cembrook v. Superior Court (1961) 56 Cal.2d 423; St. Mary v. Superior Court (2014) 223 Cal.App.4th 762; Hillman v. Stultz (1968), 263 Cal.App.2d 848, 885. ("They were enacted to eliminate the necessity of putting on formal proof of essentially uncontroverted facts, not as a substitute for trial of genuinely disputed facts."). Accordingly, when a litigant "toys" with the process by evading a factual proposition by avoiding the materials that provides the response to such requests, it defeats the purpose and the function of the requests and unduly forces plaintiff to waste time, money and energy proving factual propositions that can and should be readily admitted. Yet, that is exactly what Defendant has improperly done here. KMA removed some of the objections with respect to certain terms in the Request for Admission, but still pleads the inability to admit or deny the Request, which is improper. A further response to Request for Admission No. 24 is necessary. Finally, with respect to Request for Admission No. 31, it appears that Defendant inadvertently omitted the further response portion in their response. Accordingly, for the reasons 6 KMA decided t0 provide further response t0 Request for Admission Nos. 27-30 and 32-44, further response to Request for Admission N0. 31 should also be provided. Plaintiff respectfully asks for further, verified responses t0 each 0f the propounded Requests for Admission. DEFENDANT'S FURTHER RESPONSES TO PLAINTIFF'S SPECIAL INTERROGATORIES Plaintiff’s Speciai interrogatory N0. i asks Defendant t0 identify aH persons who wer€ consulted 0r provided answers to these interrogatories. For the same reasons discussed in relation to Form Interrogatory N0. 1.1, defendant’s further rssponse is insufficient, and an even further response is necessary t0 cure the deficiencies. Defendant's further response t0 Special Interrogatory N0. 2 refers Plaintiff to the CACCRS, which will apparently be produced upon the entry of an appropriate Protective Order in this case, but Defendant failed t0 provide a proposed Protective Order t0 resolve this issue. Accordingly, Plaintiff requests that Defendant produce their proposed Protective Order. Special Interrogatory Nos. 3 through 6 are all related t0 Special Interrogatory N0 2., which all refer t0 the same document? which will only be produced subject t0 the entry 0f a Protective Order, but Defendant again has failed to produce said Protective Order. Thus, once Defendant provides the Protective Order for Special Interrogatory N0. 2, it should also provide even further respons3s t0 Special Interrogatory Nos. 3 through 6. It should be noted that communications directly between the parties are not proprietary and the Court would not likely uphold any protective order for said communications. In order t0 avoid any unnecessary motion practice, Plaintiff requests that Defendant produce the CACCRS without a Protective Order. Defendant’s further response to Speciai Interrogatory No. 7_, refers Plaintiff to the Techline Assistance Center Case Reports, which Will be produced subject t0 the entry 0f an appropriate Protective Order, similar t0 Defendant’s response t0 Special Interrogatory Nos. 2-6. Yet again, Defendant failed to provide a copy 0f the proposed Protective Order upon which Defendant will produce the responsive documents. More importantly, Special Interrogatory N0. 7 asks Defendant t0 provide a simple “yes” 0r “no” response. Nothing about seeking this type of response seeks t0 invade any trade~secret 0r other similar privileges. Accordingly, please provide a further response t0 Special Interrogatory N0. 7. Similarly, further responses are required for Interrogatory Nos. 8, 10, and 11, since they relate to Special Interrogatory No. 7, and d0 not seek t0 invade any trade secret or similar privileges. Defendant’s responses are deficient for the same reasons as discussed in N0. 7. In response t0 Special Interrogatory N0. 12, Defendant responded referring Plaintiff t0 the repair orders for the subject vehicle and refers t0 each repair order individually. Rather than count the number 0f times Plaintiff produced the vehicle for repairs under the express warranty, Defendant lists them, which is baffling, as it took the same amount 0f work t0 provide an evasive response. Accordingly, Plaintiff requests that Defendant provide a further response to Special Interrogatory No. 12. For the same reasons, a further response to Special Interrogatory No. 13 is also required. In response to Special Interrogatory No. 14, in addition to objections that Plaintiff has already addressed, Defendant states that Plaintiff has equal ability to identify all persons who performed warranty repairs on the Vehicle. Defendant, as the provider of the warranty of the Vehicle, knows all the information of these technicians. All they have to do is perform a VIN search, and the provide the information to Plaintiff. Plaintiff cannot find this information with the ease that Defendant can. This case is a breach of warranty case and the persons who performed the warranty repairs are therefore percipient witnesses. Defendant's evasive tactics are not well taken. Please further respond and identify the persons who performed the warranty repairs on the subject vehicle. A further and complete response to No. 14 is hereby demanded. For the same reasons as Special Interrogatory No. 14, Defendant's response to Special Interrogatory No. 20 must also be further supplemented. It should also be noted that these repair orders to not adequately identify the technicians who attempted to conform the subject vehicle to the applicable express warranty, rather their respective technician ID numbers are only provided. Special Interrogatory No. 25 asks KMA to identify all persons responsible for its customer relations department in the region having jurisdiction over Plaintiffs complaints, and Special Interrogatory No. 26 asks Defendant to identify the person(s) who is most knowledgeable regarding Defendant's warranty policies, including but not limited to policies that Defendant may have had regarding the replacement or reimbursement of allegedly defective automobiles, respectively. Defendant deflected these and did not provide answers responsive to the Interrogatories. Instead, Defendant asserted the same boilerplate objections. Plaintiff is entitled to the identifies of these key witnesses who oversee its customer relations department. Further responses are necessary. As a matter of statutory law, witness information is not protected. "Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter ... . " [Emphasis added]. C.C.P. §§2017.010; 2030.0l0(a); Gonzalez v. Superior Court (1995) 33 Cal.App.4 th 1539; 1536-154 7. Next, Defendant does not have the right to choose how Plaintiff conducts his discovery. As long as Plaintiff propounds discovery properly pursuant to the Code, as Plaintiff has done, then Defendant has an obligation to respond properly. Defendant cannot decide that Plaintiff should choose a different method, and when Plaintiff does, only then will Defendant appropriately respond. This is insufficient and Defendant has failed to provide any legal authorities to support its position with respect to these two Interrogatories. Defendant has failed to provide a complete and straightforward response setting forth "the truth, the whole truth and nothing but the truth." C.C.P. § 2030.220 (a), (b). Thus, a further response is requested to Nos. 25 and 26. 8 Special Interrogatory N0. 27 asks Defendant t0 list all Special Service Messages and/or TSBS that relate t0 each nonconformity in the subject vehicle, as alleged in Plaintiffs Complaint filed in this action. Defendant asserted the same boilerplate objections, all 0f which should be withdrawn for reasons previously discussed. The Discovery Act is broadly interpreted. Greyhound Corp. v. Super. Ct. (Clay) ( 1961) 56 Cal.2d 355, 384. Generally, "any party may obtain discovery regarding any subject matter involved if the matter either is itself admissible in evidence 0r appears reasonably calculated t0 lead t0 the discovery of admissible evidence.” CCP § 2017.010. Plaintiff is entitled to a list 0f ail 0f the special service messages and/or TSBS that relate t0 all 0f his allegations in the Complaint, not limited t0 those that Defendant considars related, or just TSBs. If there are none, then KMA should state as much. A further response is required to N0. 27. Defendant made a number 0f boilerplate objections to Special Interrogatory 31, but Plaintiff is nonetheless entitled t0 an answer according t0 Defendant's best knowledge. The Special Interrogatory seeks a “yes” 0r “no” response again, and Defendant relies upon a number 0f baseless objections and utterly fails t0 even attempt t0 use a reasonable interpretation 0f the Special Interrogatory when providing their rGSponse. Accordingly, a further response is required. Special Interrogatory No. 40 asks for witness information. This Intermgatory asks Defendant t0 identify individuals Within Defendant's company who are reSponsible for ensuring that Defendant complies with Song-Beverly. Plaintiff‘s entire lawsuit is premised 0n allegations that Defendant violated the Song-Beverly Consumer Warranty Act. As such, Plaintiff is entitled t0 know who the individuals are within Defendant's company that are responsible for making sure Defendant complies with California law. If n0 such individual(s) exist(s), then Defendant must indicate this under oath. Defendant’s boilerplate and unsubstantiated objections should be withdrawn. As such, a further response is still required. Special Intarrogatory N0. 41 refers t0 Special Interrogatory N0. 4O for its answer. This is nonresponsive and deficient. For the reasons stated above, a further response is still necessary. As t0 Special Interrogatory N0. 42, after Objections, Defendant asserted attorney-client privilege. Please explain how and why this objection applies here, provide a privilege 10g, 0r otherwise respond fully. Defendant’s further responses entirely fails to address this issue. Similarly, Special Interrogatory No. 43 deals With identification 0f key witnesses, yet Defendant failed to answer, but instead raised the same boilerplate and frivolous Objections. Defendant is obligated t0 identify these witnesses. The same applies to Special Interrogatory N0. 44. While Plaintiff appreciates that Defendant supplemented their response and refers Plaintiff t0 documents which were consulted, reviewed and/or obtained, Defendant refers t0 a number 0f them which require the entry 0f a Protective Order prior t0 being produced, yet Defendant failed t0 provide a proposed Protective Order to start any kind of resolution to these discovery issues. Accordingly, further responses are therefore required, and a copy of the proposed Protective Order needs to be produced for review. Defendant's response to Special Interrogatory No. 46 is nonresponsive. This particular interrogatory calls for KMA to state the number of repair attempts that they were afforded, not whether KMA contends they were able to repair the subject vehicle within a reasonable number of attempts. For the same reasons discussed previously, a broad reference to documents produced is unacceptable. This is a contention interrogatory, which is entirely proper. Surely KMA already performed this calculation and simply prefers not to provide an answer. Special Interrogatory No. 51 asks Defendant to list all technical service bulletins applicable to the subject vehicle, including any that were superseded. Defendant's response only includes the same boilerplate and frivolous objections that Defendant asserted previously. This is the discovery stage, and Plaintiff is entitled to a list of all TSBs relating to this vehicle, including those superseded. Defendant's broad reference to TSBs that were supposedly produced is akin to "look at my documents and see" which is improper. Defendant's knowledge of known defects that affect its vehicles is relevant. Defendant may not condition its response on arbitrary requirements of its own making. Accordingly, a further response 1s necessary. Special Interrogatory No. 52 ask to explain in detail the process by which a TSB is recalled or suspended. Defendant continues to claim that the request is overly broad, immaterial, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. It further alleges that this is an abuse of discovery by Plaintiff because Plaintiff did not even identify any TSB. How can Plaintiff possibly identify the TSBs when Defendant will not provide a complete list or produce the full set of those that apply to the subject vehicle? Therefore, a further response is necessary. Special Interrogatory No. 53 asks Defendant to state the number of days the vehicle was out of service for warranty repairs. There are no privileges or substantiated objections that apply. The total number of "down days" is essential to determining if the lemon law presumption applies. The dealer repair orders do not provide the response because the open and close dates on a dealer's repair orders are often inaccurate and thus do not accurately reflect out-of-service time; in fact, repair orders remain open due to circumstances not reflected in the documents alluded to. As such, the records identified do not answer the question and so the response on its face is incomplete and non-responsive. The appropriate information is readily available to Defendant; it can obtain it by contacting its authorized dealer. Defendant is required to provide answers that are "as complete and straightforward as the information reasonably available to the responding party permits." Defendant's duty also encompasses the requirement that it make a reasonable and good faith effort to obtain the information sought by the interrogatory, except where that information is readily available to the propounding party. Regency Health Services, Inc. v. Superior Court (1998) 64 Cal. App.4th 1496, 1504. This includes referring to all sources of information that are under the party's control. California Code of Civil Procedure § 2030.220(a), (b ). To be certain, information related t0 work performed by Defendant-authorized service centers is under the control 0f Defendant, and Defendant is clearly able t0 ascertain which Defendant-authorized service centers performed warranty repairs 0n the subject vehicle. A further response is required t0 N0. 53. Plaintiff respectfully asks for further, verified responses to each 0f the propounded Special Interrogatoriesn DEFENDANT'S FURTHER RESPONSES T0 PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS As a preliminary note, after review 0f KMA”S further reSponses, at least some of Defendant's Responses t0 Plaintiffs Request for Production 0f Documents remain not Code- compliant. A document response must consist 0f: (1) an agreement to comply, stating whether production 0r inspection will be allowed "in whole 0r in part” and that all documents 0r things in the possession, custody, 0r control 0f the respondent, as t0 which no objection is made, will be included, by the date set for inspection (unless informally extended in writing, 0r the designed timing is subject t0 objection); (2) a representation 0f inability t0 comply, with a specification 0f any person believad or known t0 have possession 0f documents; 0r, (3) objections and specifications 0f withheld documents. Code 0f Civil Procedure §§2031.210 (a), 2031.220, 2031.270, and 2031.280(b ); Wei! & Brown, Civ. Pro. Befbre Trial (The Rutter Group 2012) W 8:1469-9:1474. Time and again throughout these objections, Defendant raised concerns based 0n confidentiality and trade secrets, and has not proposed a protective Order when it is Defendant who has the burden 0f seeking a protective order and substantiating why documents it claims are privileged require protection. Until it does so, there is n0 reason why Defendant should not produce the requested documents, which Plaintiff contends do not meat the minimum threshold for protection anyway. Plaintiff objects t0 Defendant's conditioning the production 0f documents 0n the execution of a Stipulated Proposed Protective Order. Pursuant t0 CCP sections 2016.040 and 2031060030, this serves as Plaintiffs effort t0 informally resolve this matter“ Moreover? Defendant entirely fails to provide a proposed Protective Order that could even be considered t0 resolve these issues according to Defendant’s improper demands. The following discussions provide prima facie evidence 0f good cause for the production 0f the documents sought by Plaintiff in this case. See, CCP. § 2031.31 O(b )(1) [ A motion for an order compelling a further response t0 a production request "shall set forth Specific facts showing good cause justifying the discovery sought..."] Glenfed Development Corp. v. Superior Court (1997) 53 Ca1.App.4th 1 1 13, 1117. Unless there is a legitimate privilege issue 0r Claim of attorney work product, the moving party's burden is met simply by a showing or relevance. TBG Insurance Services Corp. V. Superiar Court (2002) 96 Cal.App.4th 443; Kirkland v. Superior Court (2002), 95 Cal.App.4th 92, 98. Request for Production Nos. 3 and 4 ask for all warranty repair documents regarding, pertaining, 0r relating t0 the subject vehicle, and all warranty reimbursement documents applicable t0 the subject vehicle, respectively. Defendant’s confidentiality concerns can be 11 resolved with a protective order, but Defendant has yet to produce any protective order for review. Therefore, further responses with an accompanying document production are necessary. Request Nos. 5 and 6 seek all warranty documents applicable to the subject vehicle and all documents related to any examination, test, or inspection performed with respect to the subject vehicle. For the same reasons as above, a further response and responsive document production is necessary. Request Nos. 7 and 8 seek pre-delivery preparation related documents, and any service, adjustments, repairs, or restorations to the subject vehicle prior to delivery to Plaintiff, respectively. Defendant's response states that they will search for, and produce upon discovery, a pre-delivery inspection report, without any assurances or timeframe for which such search or document production will occur, and thus, further responses and an accompanying document production is necessary. Request for Production No. 9 seeks production of all recall documents regarding, pertaining, or relating to the subject vehicle, including but not limited to, service bulletins and/or technical service bulletins. Defendant did produce the TSBs and recalls, but also refers to the Warranty History Inquiry, CACCRs, and Techline Case reports, that will be produced upon the entry of a protective order. The first two of these documents are not proprietary or protected trade secret, and I have won this very issue before. Rather than undergo unnecessary motion practice and argue over whether the documents are privileged or protected, KMA should simply produce these documents. Moreover, as stated above Defendant has not produced a proposed protective order that can even be considered to resolve this discovery issue. As for Request for Production No. 10, Defendant responds that they will produce the documents which are in their possession, custody, or control, and to which no objection is being made. This is concerning as it is unclear which documents Defendant is withholding subject to objection, and under what objection those documents are being withheld. This is the same for many of Defendant's further responses. Anything that would allow a party to prepare for trial in this matter is discoverable. Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 611. Any question as to discoverability is resolved in favor of allowing discovery. GleJ?jed Dev. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 9. As such, a further response and accompanying document production is required. With respect to Nos. 11 and 12, a further response and document production is necessary for the same reasons as stated above. Wide-ranging discovery responses are permitted because discovery is meant to elicit all facts. Burke. Defendant responded referencing some documents that were being produced, and then refers to several documents which will only be produced subject to the entry of a protective order. Both of these further responses should be amended for the same reasons as Request for Production No. 9. In response to Plaintiffs Request for Production of Documents No. 13 seeking production of all statements taken by Defendant or anyone acting on its behalf from any person with respect to the subject vehicle, Defendant makes the same references to documents as Request No. 9, and never submitted a proposed protective order. Thus, the need for such an order has not been 12 substantiated in any way, and Plaintiff is entitled to the documents sought. A fm1her production 1s necessary. Request for Production Nos. 14 and 15 seek production of all documents evidencing any communications regarding the subject vehicle and/or communications between Plaintiff and Defendant. First of all, as has been repeated above, Defendant has not produced a proposed protective order, nor have they produced any privilege log, and if there are any privileged documents that Defendant is withholding based upon privilege, then Plaintiff is entitled to a privilege log to assess whether protection is appropriate. Accordingly, as stated in regard to Defendant's response to Request for Production No. 9, Defendant should provide a further response and the proposed Protective Order. For the same reasons as discussed to varying degrees above, a further response with production of documents to Request No. 16 and 17 is necessary. Request for Production No. 20 asks Defendant to produce the complete Sales and Service Accounting File. Again, Defendant states that they will produce the documents that exist and are in Defendant's possession, custody, or control, and to which no objection is being made. This again raises the question what documents are being withheld subject to objections. If there are any documents being withheld, then Defendant must produce a privilege log in accordance with their response. It is also difficult for Plaintiff to understand why the purchase agreement would be responsive to Plaintiffs request for the Service Accounting File. A further response with responsive document production is necessary. For Request for Production Nos. 21 and 23, Defendant's further response again refers to documents that will only be produced subject to the entry of a protective order, but again, for the same reasons as Request for Production No. 9, Defendant's further responses are required. And again, Defendant failed to produce a proposed Protective Order that is required by Defendant. Produce the referenced documents that Defendant failed to produce including the sales and service records and Warranty History Inquiry, as well as any documents responsive to Request for Production Nos. 24 and 25, both of which raise the same frivolous and boilerplate objections. Request for Production No. 26 seeks all documents relating to the odometer or number of miles on the subject vehicle. Defendant's further response refers to the repair orders and the Warranty History Inquiry that will only be produced subject to the entry of a protective order. However, as stated above, this document is not proprietary and should be produced. Further, Defendant has failed to produce a proposed protective order that could even be contemplated by Plaintiff. For Request for Production Nos. 30, as explained previously in this letter, the burden is on the party seeking protection to substantiate the need for protection and seek an order if necessary. Defendant failed to justify the need for one so far. Please further respond and produce all responsive documents. 13 Request for Production No. 31 asks for all documents relating to the customer call center, including but not limited to, all flow charts, processes, and/or scripts. Defendant1s response refers to documents that will be produced subject to the entry of a protective order, but no protective order was produced by Defendant. For the reasons stated above, please produce the responsive documents and the protective order proposed by Defendant. Defendant's objections claiming material that is confidential, proprietary, and protected by trade secrets are not supported by the requisite showing. A party claiming confidentiality protections must show good cause for the need in terms of a protective order. Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4 th 261, 318. Defendant must show that the information sought actually contains confidential commercial information (not otherwise known to others in the pertinent field) and that its dissemination would injure Defendant. See Id. Kia has not shown that the information sought is generally unknown to other auto manufacturers or others similarly situated who could gain an advantage from its use, nor shown that any harm would result to Defendant from such use. Therefore, conclusory allegations and objections are not sufficient. Defendant failed to include or refer to any privilege logs or similar documents describing the allegedly confidential documents. See, Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181. The purpose of a privilege log is to provide a specific factual description of documents in support of substantiating a claim of privilege in connection with a request for document production. Since these responses include no details or enumeration of allegedly confidential documents, Plaintiff cannot evaluate KMA's entitlement to these asserted protections. These documents are clearly relevant as they evidence KMA' s policies and procedures for evaluating whether or not a customer's vehicle qualifies for repurchase under Song-Beverly. Whether or not Defendant willfully violated Song-Beverly is relevant to the potential for a civil penalty of up to two times Plaintiffs actual damages pursuant to Civil Code § 1794( c ). Accordingly, a further response is necessary. Request for Production No. 33 asks for all documents related to the technical hotline. Defendant again refers to the same documents that will only be produced subject to the entry of a protective order, and failed to propose a protective order. As discussed in relation to Request for Production Nos. 30 and 31, this is unacceptable. Further responses and production are necessary. Request for Production No. 34 asks for all documents related to efforts by you to reduce the number of repeat repair attempts for a customer, which Defendant failed to supplement. Defendant's objections are with merit and it has not been shown how this request seeks confidential, proprietary, or trade secret information. Clearly, manufacturers and warranty defense lawyers know what a "repeat repair attempt" is, as it is a term regularly used in the context of Song-Beverly cases. Therefore, a further response is necessary. I also note that you have objected to Request for Production No. 35, and did not provide further response, which asks for all documents related to efforts by you to reduce the number of reacquired vehicles as well as Request for Production No. 36 which asks for all documents related to repeat repair procedures for remedying customer concerns. Clearly this information is relevant as Plaintiff is entitled to efforts by Defendant to repair the subject vehicle. Further responses with document production 14 are required. All the other boilerplate objections that Defendant has repeated in these responses have been soundly addressed elsewhere in this letter. Request for Production Nos. 37 through 42 seek documents evidencing, relating, or referring to complaints by owners of the same year, make, and model as the subject vehicle regarding any of the conditions, defects, or nonconformities for which Plaintiff presented the subject vehicle to you or your authorized repair facility for repair, and production of all surveys, reports, summaries, or other documents in which owners of the same year, make, and model as the subject vehicle have reported to you any of the specific problems. Defendant did not provide further response, so Plaintiff assumes that Defendant is maintaining the before asserted numerous objections on the grounds that each Request is overly broad, vague, and ambiguous, and not properly limited in time and scope, irrelevant, seeks proprietary, commercially sensitive and confidential information, and does not specify with reasonable particularity what is sought. Defendant's objections are without merit, and certainly no justification to refuse to produce the requested relevant documents. The discovery act is broadly interpreted. Greyhound Corp. v. Super. Ct. (Clay) (1961) 56 Cal.2d 355, 384. Generally, "any party may obtain discovery regarding any subject matter involved ... if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence." CCP § 2017.010. Given the broad standard of discovery within the state of California, Plaintiff confidently contends that Defendant's knowledge of other individuals complaining of the same defects or conditions for which Plaintiff presented the vehicle are relevant. In West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal. 2d 407, the Supreme Court discussed the meaning of the terms "burden" and "oppression." The Court held that burden alone is an insufficient basis to object to discovery because all discovery imposes some burden on the responding party. See, Id. at 417, 418. In addition, any objection based upon burden "must be sustained by evidence showing the quantum of work required" to respond to the discovery. See, Id. at 417. Similarly, an objection based on oppression must be based on a showing "either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the results sought." See, Id. Information about other similar vehicle complaints may demonstrate a defect or nonconformity, or show when it arose, and may also demonstrate Defendant's knowledge of widespread warranty problems and Kia's failure to act despite this knowledge. The Court of Appeals recently addressed a manufacturer's argument that evidence of other vehicles was prejudicial and irrelevant. See, Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138. The Court held: "other vehicles testimony was not unduly prejudicial. It did not concern simply other vehicles. It was limited to the (defective component) in Plaintiff.,s truck and other vehicles. (Plaintiffs expert) described what Ford itself had done to notify dealers and technicians about problems with this ( defective component) model. Thus, everything about which he testified that applied to other vehicles applied equally to Plaintiffs vehicle. Such evidence certainly was probative and not unduly prejudicial. f! See, Id. at 154. 15 Donlen is not an outlier case. In Doppes v. Bentley Motors Inc. (2009) 174 Cal.App.4th 697, the trial ordered production of "repair invoices or other records of odor reduction work and/or odor repair on all Bentleys for model years 1999 to 2006, all documents recording approval for installation of odor reduction kits for model years 1 999 to 2006, all documents denying approval for installation of odor reduction kits for model years 1999 to 2006, any correspondence ( other than email) from Bentley dealers to Bentley USA or UK regarding customer odor complaints, .. and all other documents of any description referring or relating to the odor problem or complaints of odor in Bentley automobiles for model years 1999 to 2006." The Court of Appeal upheld the trial court's orders. Additionally, information about other similar vehicle complaints are relevant to refute Defendant's claims that Plaintiff or others, aside from Defendant, are responsible for the vehicle's problems, as alleged in Defendant's affirmative defenses claiming that Plaintiff and/or others misused or abused the vehicle, or engaged in unauthorized or unreasonable use of the subject vehicle. Under any interpretation, the documents that Plaintiff seeks are "reasonably calculated to lead to admissible evidence, fl which is the standard that governs here. Accordingly, the documents sought by Plaintiff are certainly discoverable, as they are "reasonably calculated to lead to the discovery of admissible evidence.fl CCP § 2017.010; Sinaiko Healthcare Consulting, Inc. v. Pac(fic Healthcare Consultants (2007) 148 Cal.App.4th 390, 402. Plaintiff may also prove that Defendant willfully refused to buy back the vehicle despite knowing that it was legally obligated to do so, and if so, the Court may impose civil penalties against Defendant. Further responses and production are therefore needed for Request Nos. 37 through 42. Next, Requests for Production Nos. 43 and 44 seek the Pinpoint tests including codes retrieved, and the wiring diagrams for any systems related to the subject vehicle's concerns, respectively. Defendant continue assertions of the previously made objections and privilege claims for each but failed to provide privilege logs or fully explain the objections. These documents are necessary for Plaintiffs experts to assess and understand the claims and defenses involved in the case for the specific problems and concerns involved. Please further respond and produce the documents. Plaintiffs Request for Production of Documents, No. 45, seeks production of all documents related to repair procedures performed on the subject vehicle. Defendant's further response refers to the repair orders and the Warranty History Inquiry, which would only be produced subject to the entry of a protective order, but failed to produce a proposed protective order. This response remains nonresponsive to Plaintiffs Request. Repair procedures include all instructions, directives, guidelines, procedures for how to actually fix the vehicle. Plaintiff seeks only those documents related to repair procedures that were actually performed on the subject vehicle, whereas the repair orders do not provide any of this information. Please review Plaintiffs Request No. 45 carefully and provide a further response and corresponding production of documents. 16 Request Nos. 46 and 47 seek the As-Built data and the VIN digit breakdown documents. Like Nos. 43 and 44, Defendant's non-supplemented responses are insufficient, and these documents are relevant and nonprivileged. Thus, further responses and production should be forthcoming. Plaintiffs Requests for Production, Nos. 48 and 49, seek all TSBs, and recalls, applicable to the subject vehicle. Defendant states that they produced the TSB or recall that were applied to the subject vehicle, and Plaintiff is entitled to the full set of those that apply to the subject vehicle, whether or not they were performed. This is the discovery stage and the standard of relevance is broad, as discussed earlier. Defendant's further response to Request No. 49 is not code compliant and raises several issues, requiring further response from Defendant. Defendant states that Plaintiff can request the recall documents from the National Highway Traffic Safety Administration ("'NHTSA"). Unless Defendant is agreeing to waiving various objections based on hearsay, lacks foundation, etc., then Plaintiff would be unable to use these documents at trial. Accordingly, this response is incomplete and requires further response. Request Nos. 50 and 51 seek any repair or diagnostic procedures that were consulted during the completion of repairs on the vehicle, in addition to repair procedures that were actually performed. In further response to these requests, Defendant only refers to the repair orders for the subject vehicle. Again, the repair orders are not fully responsive to the request. The technicians may have consulted other diagnostic procedures before finding the procedure which was effective in determining the root cause of the nonconformity, which is not reflected in the repair orders. Moreover, the repair orders follow the proverbial '"three C's" wherein the customer's concern, the cause of the concern, and the correction for the concern, are noted, but nothing else. Accordingly, these documents are not responsive to the requests and further responses are required. As such, Plaintiff expects further, verified responses to the Requests for Production propounded on Defendant. Thank you. I I I I I I I I I I I I I I II 17 REQUESTED ACTION Please provide further, verified responses within seven (7) days 0f the date of this letter. If you require additional time t0 respond, then please advise and I will accommodate any reasonable request and postpone consideration 0f filing any motions to compel. As you know, there was n0 deadline for a motion t0 compel further responses until the responses were verified. Ifg however; Defendant fails t0 prOVide further responses as requested herein, 0r t0 otherwise respond, then Plaintiff will have n0 other alternative but t0 file motions t0 compel, reserving all rights to seek costs and sanctions as appropriate. I hope t0 avoid burdening the court with any discovery disputes and therefore, I 100k forward t0 resolving this directly without court intervention. Very Truly Yours, THE BARRY LAW FIRM Erik Whitman, Esq. 18 .bUJN \OOONGUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA COUNTY OF SANTA CLARA THUERK V. KIA MOTORS AMERICA, INC. CASE # 20CV364578 I am employed in the County 0f Los Angeles, State of California. I am over the age 0f eighteen (1 8) years and not a party t0 the within action; my business address is: 11845 W. Olympic Boulevard, Suite 1270, Los Angeles, CA 90064. On January 28, 2021, I served the following described as: PLAINTIFF’S NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT’S FURTHER RESPONSES TO REQUESTS FOR ADMISSION; MEMORANDUM OF POINTS & AUTHORITIES; DECLARATION OF ERIK WHITMAN WITH EXHIBITS Service was made in the below ascribed manner, on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed to: PLEASE SEE ATTACHED SERVICE LIST [] (MAIL) I am "readily familiar" with the legal department’s practice for collection and processing of correspondence for mailing. It is deposited with the U.S. postal service on that same day in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if the postal cancellation date 0r postage meter date is more than one day after the date of deposit for mailing in affidavit. [] (OVERNIGHT DELIVERY MAIL) I caused the above described document to be served on the interested parties noted below by GSO Delivery Service in an envelope or package designated by the express service carrier in a facility which is deposited with the GSO Delivery Service in our building on the same day, in the ordinary course of business with delivery fees paid or provided for. [] (PERSONAL SERVICE) I caused the above described document to be personally served 0n the interested parties noted below. [X] (BY ELECTRONIC SERVICE) I caused such document t0 be delivered by electronic transmission to the addresses and offices of the addressee listed on the Service List. [X] (STATE) I declare under penalty 0f perjury under the laws of the State 0f California that the above is true and correct. Executed on the 28th of January 2021, at Los Angeles, California. Megan Hoerman WWW I :__. _ NAME fl SIGNATURE" PROOF OF SERVICE \OOOflmUl-bbJNr-A NNNNNNNNNHHHHb-tr-tt-Ap-AHr-A OOVONM-BWNHOCOOVONMAWNHO W THUERK V. KIA MOTORS AMERICA, INC. CASE # 20CV364578 Kate Lehrman, Esq. Danielle N. Duarte, Esq. danielle@lehrmanlawgroup.com Lehrman Law Group 12121 Wilshire B1Vd., Suite 1300 Los Angeles, CA 90025 CC: k1ehrmanéblehrmanlawgroun.com danielle@lehrmanlawgroup.com Attorneys for Defendant, KIA MOTORS AMERICA, INC. PROOF OF SERVICE