DOAN VS. KIA AMERICA, INC.

Code Civil Procedure, section 871.26, subdivision (j)(1) provides:

(j) Unless the party failing to comply with this section shows good cause, notwithstanding any other law and in addition to any other sanctions imposed pursuant to this chapter, a court shall impose sanctions as follows: (1) A one-thousand-five-hundred-dollar ($1,500) sanction against the plaintiff’s attorney or twothousand-five-hundred-dollar ($2,500) sanction against the defense attorney respectively, paid within 15 business days for failure to comply with the document production requirements as prescribed in subdivision (b).

Here, Plaintiffs have shown that Defendant failed to comply with subdivision (b) because Defendant failed to produce all the documents called for in subdivision (h). Rather, on the last day for Defendant to comply, Defendant provided a proposed stipulated protective order and asserted it was withholding a subset of documents it was required to produce as part of its initial disclosure pending the entry of the protective order. Even if Plaintiffs had immediately assented to the entry of the protective order, there was no possibility it could have been submitted to the Court and entered within the 60-day timeframe Defendant had to comply.

Defendant argues that sanctions are not warranted because it timely complied with its obligations under subdivision (h). Defendant reasons that the only documents not produced were subject to the qualified privilege protecting disclosure of trade secrets under Evidence Code, section 1060 and that Code of Civil Procedure, section 871.26 cannot require the waiver of this privilege.

Defendant’s argument is unpersuasive. As an initial matter, statutes establishing an evidentiary privilege are narrowly construed, while discovery statutes are liberally construed. (Sullivan v. Superior Court (29 Cal.App.3d 64, 72 [“We have already referred to the requirement that privilege statutes must be narrowly construed, while discovery statutes must be liberally construed.”].) Evidence

Code, section 1060 provides that “the owner of a trade secret has a privilege to refuse to disclose the secret ... if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice.”

Evidence Code, section 1060 cannot be used as a basis for outright refusal to produce the documents Defendant is required to produce pursuant to Code of Civil Procedure, section 871.26, subdivision (h)(6), (7), (8), (11) and (12). There is no genuine dispute that these categories of documents are directly relevant to one or more elements of Plaintiffs’ claims. Namely, Defendant agreed that the privilege is not absolute as to these categories by agreeing to produce the materials subject to a protective order.

But the issue here is not whether Defendant’s invocation of trade secret privilege is legitimate. The issue is whether Defendant’s eleventh hour invocation of this privilege provides good cause to deny sanctions under Section 871.26, subdivision (j)(1). It does not. Nowhere in Section 871.26 does it provide that the 60-day deadline to comply can be satisfied by anything less than a complete response. Defendant has recognized that it cannot properly withhold these purported trade secret documents from production; this is shown by the offer to produce the documents subject to a protective order.

Since Defendant failed to act diligently to obtain Plaintiffs’ assent to the stipulated protective order, or otherwise obtain a protective order, Defendant failed to provide all documents called for in Section 871.26, subdivision (h) within the 60 days required by subdivision (b). Had Defendant shown diligent efforts to obtain entry of the stipulated protective order within the 60 day time frame, the Court likely would have found good cause to excuse the sanctions award under Subdivision (j)(1).

What is before the court, however, is a showing that Defendant failed to undertake appropriate efforts to timely comply with Section 871.26 with reasonable diligence. Defendant’s failure to promptly act does not warrant the conclusion that Section 871.26 operates to force Defendant to waive any privilege.

The motion is granted.

Counsel for Defendant Kia America, Inc. shall pay monetary sanctions in the amount of $2,500 within fifteen business days of this ruling.

Plaintiffs to give notice.

7. MAKA VS. AMERICAN HONDA MOTOR CO., INC. 2023-01325822 MOTION TO TAX COSTS Defendant American Honda Motor Co., Inc.’s Motion to Strike/Tax Plaintiffs’ Costs is GRANTED.

Defendant moves to tax and/or strike Plaintiffs’ costs by $387.95 as follows: