The opinion
Filed 1/9/26; certified for publication 2/3/26 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
RYAN HIGGINSON, D082322, D083026
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2020-
00010610-CU-BC-CTL)
KIA MOTORS AMERICA, INC.,
Defendant and Respondent.
CONSOLIDATED APPEALS from a judgment and postjudgment
orders of the Superior Court of San Diego County, Gregory W. Pollack, Judge.
Reversed and remanded with directions.
Strategic Legal Practices and Payam Shahian, Tionna Carvalho;
Greines, Martin, Stein & Richland and Cynthia E. Tobisman, Joseph V. Bui,
Gary J. Wax, Anne Guidroz; Ecotech Law Group and Dara Tabesh, for
Plaintiff and Appellant.
Horvitz & Levy and Lisa Perrochet, Shane H. McKenzie, Rebecca G.
Powell; SJL Law, Julian G. Senior and Marcelo Lee for Defendant and
Respondent.
I. INTRODUCTION
Plaintiff and appellant Ryan Higginson sued defendant and respondent
Kia Motors America, Inc. (Kia), alleging that Kia’s conduct in connection with
defects in the engine of his 2013 Kia Soul violated the Song-Beverly
Consumer Warranty Act (Civ. Code, § 1790 et seq.; the Song-Beverly Act) and
the Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.; CLRA), and
constituted fraud. Because Higginson failed to attach to his initial complaint
a venue affidavit required by the CLRA, the trial court dismissed that cause
of action without leave to amend, despite the fact Higginson filed a venue
affidavit before filing an amended complaint.
During discovery, Higginson requested that Kia produce documents
regarding (among other things) internal investigations and communications
with government agencies regarding alleged engine defects. When Kia
responded with boilerplate objections, Higginson obtained a court order
directing Kia to respond without objections to a narrowed, court-approved
definition of “engine defects.” Kia served verified supplemental responses
attesting that responsive documents “never existed.” The Kia employee who
verified the discovery responses testified in deposition that Kia conducted a
diligent search, that Kia employees followed their usual protocol of searching
for records that referenced individual defect symptoms (as opposed to
searching only for records that referenced every defined symptom), and
confirmed that the verified discovery responses were accurate when claiming
that responsive documents never existed.
Higginson suspected Kia’s responses were false because his counsel
had seen a letter from the National Highway Transportation Safety
Administration (NHTSA) requesting that Kia produce certain documents
regarding alleged engine defects. Higginson showed this letter to the
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trial court, seeking an order compelling Kia to comply with the court’s
earlier discovery order. The trial court denied the motion, accepting Kia’s
code-compliant discovery responses. But the court warned that if Kia “got
away with one today,” the court would likely “figure that out, and there will
be a way of balancing the scales of justice.”
On the eve of trial (before a different judge), Higginson’s counsel found
on NHTSA’s public website a letter from Kia agreeing to produce records in
response to NHTSA’s investigation mentioned above. Although Kia’s
response letter and its referenced document production would be responsive
to Higginson’s discovery requests, Kia never produced them in this case.
Upon making this discovery, Higginson moved for terminating sanctions.
The trial court — recognizing that Kia’s verified discovery responses were
false but declining to find they were willfully so — contemplated declaring a
mistrial and setting a new trial date sometime after Kia produced the
responsive documents. Kia insisted its responses were accurate but finally
revealed to the court that its records search was based on a conjunctive
approach to the definition of “engine defects” that found a document
responsive only if it related to every symptom listed in the court-adopted
definition. The trial court found that this approach was not reasonable and
was “ ‘dead on arrival.’ ” Yet, the court denied Higginson’s request for
terminating sanctions and instead instructed jurors that Kia’s discovery
responses “incorrectly stated” Kia had no responsive documents and that if
the jury found that “Kia’s response[s] . . . w[ere] intentionally false,” the jury
could “decide that production of the documents would have been unfavorable
to Kia.” But the court later excluded from jury consideration NHTSA’s letter
and Kia’s response on evidentiary grounds. This excluded the only evidence
Higginson had to prove that Kia’s discovery verifications were knowingly
3
false. Absent this evidence, the trial court’s special jury instruction only
confused the jury.
Without discovery from Kia, Higginson had no trial evidence to
establish his fraud claim. Accordingly, the trial court granted Kia’s motion
for nonsuit on that claim. And while the jury found that Higginson had
proved an engine defect existed, the jury also found — without evidence
about the possible unknown extent or irremediable nature of that defect —
that Kia had remedied it. Accordingly, the jury returned a defense verdict.
Higginson moved for a new trial on the ground that Kia’s
nonproduction of responsive documents constituted an irregularity in the
proceedings that deprived him of a fair trial. (Code Civ. Proc., § 657,
subd. (1).) 1 Kia opposed the motion, arguing Higginson was improperly
relitigating the parties’ long-settled discovery dispute, and further blaming
Higginson for not seeking to remedy Kia’s nonproduction of documents
sooner. The trial court requested supplemental briefing not on Kia’s
discovery misconduct, but on when Higginson’s counsel first became aware of
NHTSA’s letter and Kia’s response to it. When it turned out that Higginson’s
counsel had received those records months or years earlier in connection with
other cases involving different plaintiffs, the trial court denied Higginson’s
new trial motion. The trial court entered judgment for Kia and awarded Kia
its costs as the prevailing party.
Higginson raises several issues on appeal. First, he contends the trial
court erred by sustaining without leave to amend Kia’s demurrer to his CLRA
claim. Because the CLRA provides that the remedy for failing to file the
required venue affidavit is to “dismiss the action without prejudice” (Civ.
1 Further undesignated statutory references are to the Code of Civil
Procedure.
4
Code, § 1780, subd. (d), italics added) — that is, with leave to amend — we
agree the trial court erred and should have granted Higginson leave to
amend. On remand, the trial court is directed to grant Higginson leave to
amend his CLRA cause of action.
Second, Higginson argues the trial court erred by denying his requests
for terminating sanctions and for a new trial based on Kia’s discovery misuse.
We conclude the trial court acted within its discretion in initially denying
Higginson’s request for terminating sanctions and instead instructing the
jury that it could draw a negative inference from Kia’s nonproduction of
documents if the jury found it was intentional. But after the trial court’s
exclusion of evidence left Higginson unable to prove Kia’s conduct was
intentional, the court’s selected remedy became inadequate and the trial
court should have protected his right to a fair trial by later granting
Higginson a new one. In denying Higginson’s motion, the trial court erred by
focusing on the perceived failure of Higginson’s lawyers to discover sooner
that Kia committed discovery misuse, rather than by focusing on Kia’s
misuse itself. Indeed, apart from the inadequate jury instruction, Kia’s
discovery misuse went completely unremedied and Kia still has never
produced significant responsive documents in this case.
Because Kia’s unremedied discovery misuse deprived Higginson of a
fair trial, we reverse the judgment with directions that the trial court grant
Higginson a new trial and impose discovery sanctions on Kia in an amount
sufficient to compensate Higginson for the costs and attorney fees he incurred
in connection with the first trial and this appeal. Our reversal of the
judgment also operates to vacate the award of prevailing-party costs to Kia.
Accordingly, the judgment is reversed, with directions as further
specified in the Disposition.
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II. FACTUAL AND PROCEDURAL BACKGROUND
A. Vehicle History
In 2013, Higginson leased a new Kia Soul with a 1.6-liter engine that
Kia referred to as a “Gamma” engine. At the time, no one at Kia or the repair
facility told Higginson the car would have an engine defect or mechanical
problems. Higginson testified that had someone told him this, he would not
have purchased the car. In July or August 2016, Higginson exercised an
option to purchase the vehicle. Up to that point, he had no issues with it.
In February 2018, when the car had just over 91,700 miles on it,
Higginson took it to the dealer, complaining of a rattling noise when going
uphill, and a crunching sound when accelerating in first and second gear.
The dealer recommended a fuel induction service and spark plug
replacement; Higginson opted only to replace the spark plugs. When that did
not resolve the issue, Higginson returned to the dealer, which diagnosed the
issue as excessive carbon buildup in the engine. Against Kia’s recommended
practices, the dealer conducted a flushing service, which caused the engine to
not start. Kia resolved this problem by replacing the engine’s cylinder heads.
Three years after this service, the engine showed no carbon buildup.
In May 2019, Higginson returned to the dealer after he received a
safety recall campaign notice — referred to as “SC176” — regarding potential
overheating of the car’s catalytic converter, which could lead to an engine
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fire. 2 Kia’s service campaign addressed this issue by performing a software
update to the car’s engine control unit. When Higginson brought his car in
for the recall, he also complained that the steering system made a “crunching
popcorn sound” when turning. The dealer performed the prescribed software
upgrade for the engine control unit and applied a lubricant to the steering
column.
A few months later, in August 2019, Higginson returned to the dealer
complaining that the steering issue was not resolved. About that time,
Higginson called Kia to request that the company repurchase his vehicle
because of the engine and steering issues. Kia did not return his calls.
2 The safety recall campaign notice states, in part: “Under certain
conditions, the catalytic converter may become damaged due to overheating
caused by an excessive increase of exhaust gas temperatures. If the catalytic
converter is damaged, substrate particles can enter the engine combustion
chamber and cause abnormal engine combustion. Continuous abnormal
engine combustion can result in damage to one or more of the engine’s pistons
which can cause piston rod breakage, potentially puncturing the engine block
allowing engine oil to escape. Engine oil that contacts a hot exhaust surface
may result in a fire.”
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B. The Pleadings
In February 2020, Higginson sued Kia, alleging his vehicle had defects
that substantially impaired its use, value, or safety. 3 He alleged Kia knew or
should have known his vehicle (and others) had an engine that was
“susceptible to sudden stalling while at any speed and/or to burst into
flames.” Citing Kia’s recall campaign, Higginson alleged the defects were due
to overheating catalytic converters, which could damage connecting rods and
fracture the engine block, causing oil leaks and resulting in “catastrophic
engine damage and fires.” According to Higginson, Kia allowed the vehicle to
be sold to him without disclosing that the vehicle and its engine were
defective and susceptible to sudden and catastrophic failure, and that had he
known of the defects at the time of the sale, he would not have leased or
purchased the vehicle.
Based on these alleged defects, Higginson alleged causes of action for
violations of various provisions of the Song-Beverly Act; breach of express
warranty and the implied warranty of merchantability; fraud by omission;
and violation of the CLRA. Higginson did not accompany his original
complaint with a venue affidavit for his CLRA cause of action, but he filed
such an affidavit a few months later (in August 2020).
3 Higginson alleged that “[d]uring the warranty period, [his car]
contained or developed defects, including but not limited to, defects related to
the engine; defects causing a rattling noise upon acceleration; defects
requiring the performance of an engine control unit (‘ECU’) upgrade; defects
causing a failure to start; defects causing the failure and/or replacement of
the cylinder head and gaskets; defects causing a grinding sound; defects
causing the failure and/or replacement of the spark plugs; defects causing the
steering wheel to make a popcorn sound when turning; defects requiring the
upper struts to be lubricated; and/or any other defects described in the repair
history for the [car].”
8
In September 2020, Higginson filed a first amended complaint that
alleged the same defects and causes of action.
Kia demurred to the amended complaint. As relevant to this appeal,
the trial court (Judge Joel Wohlfeil) sustained the demurrer without leave to
amend as to Higginson’s CLRA cause of action because he failed to file the
CLRA venue affidavit “concurrently” with his original complaint as required
by Civil Code section 1780, subdivision (d).
C. Discovery Proceedings
1. Higginson’s Requests for Production of Documents
Higginson propounded formal discovery requests to Kia seeking
documents — broadly defined to include electronically stored information
(ESI) such as emails — relating to the alleged engine defects in 2013 Kia
Souls like Higginson’s. 4 Higginson’s requests for production (RFPs) included
requests for internal analyses or investigations (RFP No. 17); documents
concerning decisions to issue recalls, technical service bulletins (TSBs), or
warranty extensions (RFP No. 20), or to modify the design of the engine or its
components (RFP No. 21); customer complaints and warranty claims (RFP
No. 22); and communications between Kia “and any government agency or
entity,” such as NHTSA (RFP No. 56). Higginson simultaneously sent Kia a
4 Higginson’s requests included the following definition: “The term
‘ENGINE DEFECT(S)’ shall be understood to mean such defects which result
in symptoms, including, restriction of oil flow through the connecting engine
rod bearings; increased risk of non-collision fire; rattling sound upon
acceleration; symptoms requiring performance of an engine control unit
(‘ECU’) upgrade; failure to start; failure and/or replacement of the cylinder
head and/or gaskets; grinding sound; failure and/or replacement of the spark
plugs; and/or any other similar concern identified in the repair history for the
SUBJECT VEHICLE.”
9
“meet and confer letter regarding ESI” asking Kia to (among other things)
identify its “proposed search terms.”
In response to Higginson’s RFPs, Kia asserted boilerplate objections
and refused to produce documents regarding alleged engine defects. Kia did
not meet and confer with Higginson regarding search terms. Kia did,
however, agree to produce limited documents regarding the service and
warranty histories of Higginson’s vehicle and certain TSBs.
In a further effort to meet and confer, Higginson made a “proposed
compromise” to narrow many of the RFPs’ definitions and categories. As
relevant, Higginson proposed to narrow the definition of “engine defects” to
the following: “The term ‘ENGINE DEFECT(S)’ shall be understood to mean
such defects which result in symptoms, including: restriction of oil flow
through the connecting engine rod bearings; increased risk of non-collision
fire; rattling sound upon acceleration; engine knock; engine nonstart; cylinder
head failure; and engine grinding sound.” Kia did not respond to the
proposed compromise.
2. The Discovery Order
Higginson moved to strike Kia’s objections and compel further
responses to the RFPs. Higginson reasoned that Kia must possess responsive
documents because his RFPs were “substantially similar in form to ones
believed to have been requested by NHTSA” as part of its own investigation
into Kia’s Gamma engines. Higginson’s motion cited and attached a letter
dated April 12, 2019, from NHTSA to Kia (the NHTSA Letter) requesting
documents regarding any investigation and analysis into alleged defects, any
related vehicle component modifications, and customer complaints or
warranty claims. The letter mentioned that NHTSA had received 244
10
complaints of non-crash fires in Kia vehicles, some of which were equipped
with Kia’s Gamma engine. The motion noted that Kia’s deadline to respond
to the NHTSA letter had passed, which suggested that Kia had likely already
produced documents responsive to NHTSA’s requests. Higginson maintained
that those documents would also have been responsive to his RFPs.
At an October 28, 2020 hearing, the trial court (Judge Wohlfeil)
granted Higginson’s motion, in part. 5 The court adopted Higginson’s
proposed narrower definition of “engine defects” and ordered Kia to
produce — “without objection” — responsive documents regarding Kia Souls
sold in California.
3. Higginson Moves to Compel Compliance with the
Discovery Order
On November 17, 2020, Kia served further responses to Higginson’s
RFPs, followed a few weeks later by verifications signed under penalty of
perjury by Kia employee Deborah Avalos. Kia’s new responses included
objections to the court-adopted definition of “engine defects,” including that
the definition was “vague, ambiguous, compound and overly broad”; was “not
reasonably calculated to lead to the discovery of admissible evidence”; and
“requires expert witness opinions.” Subject to these objections, the relevant
5 The court sustained Kia’s attorney-client privilege and attorney work-
product objections to the RFP seeking documents regarding communications
with government agencies. The court ordered Kia to promptly produce a
privilege log itemizing any otherwise-responsive documents it withheld on
privilege and work-product grounds. This aspect of the trial court’s ruling is
not at issue here.
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responses indicated Kia had no responsive documents to produce. 6
Specifically, Kia’s verified responses to these RFPs stated: “A diligent search
and a reasonable inquiry have been made in an effort to comply with this
demand as stated with the amended definition and scope from the court’s
October 28, 2020 order. [Kia] is unable to comply because documents
responsive to this request have never existed. [Kia] is not aware of any other
person or organization with possession, custody or control of documents
responsive to this request.” (Italics added.)
Higginson attempted to meet and confer with Kia regarding the
supplemental responses. Kia responded that the objections in its
supplemental responses were proper. Higginson reminded Kia that the trial
court had ordered production “without objection.” He also “expressed
incredulity that [Kia] claimed to have performed a search that yielded not a
single page of new documents.” He asked Kia to explain the search it
conducted. Kia responded by maintaining that the trial court contemplated
that Kia could object to the new definition of “engine defects.” Kia did not
address Higginson’s request to explain the search it conducted.
Higginson moved “to compel compliance with the October 28, 2020
discovery order.” He argued Kia violated the order by asserting objections.
6 Kia gave this response to Higginson’s RFP Nos. 17, 20, 21, 22, 23, 25,
and 56. These asked for documents concerning internal analysis or
investigation regarding engine defects (RFP No. 17); decisions to issue any
notices, letters, campaigns, warranty extensions, TSBs and recalls concerning
the engine defects (RFP No. 20); decisions to modify the engine system,
and/or any of its component parts, in Kia vehicles as a result of engine defects
(RFP No. 21); customer complaints, claims, reported failures, and warranty
claims related to engine defects (RFP No. 22); failure rates of Kia vehicles as
a result of the engine defects (RFP No. 23); failure mode and effects analysis
concerning engine defects (RFP No. 25); and documents regarding
communications with any government agency or entity, such as NHTSA,
regarding the engine defects (RFP No. 56).
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He also argued that Kia’s claim that it had no responsive documents lacked
credibility. Higginson asked the court to order Kia to produce its verifier for
deposition to explain the search that yielded no response.
While Higginson’s motion was pending, Kia served further
supplemental responses that omitted the challenged objections but continued
to assert under penalty of perjury that responsive documents “never existed.”
In light of these responses, Kia argued to the court that Higginson’s motion
was moot.
Higginson countered that his motion was not moot because there was
still a “pressing need for an order” to ensure Kia had truly conducted a
diligent search to determine whether responsive documents exist. Higginson
remained skeptical, particularly in light of the NHTSA letter he previously
mentioned in connection with his initial motion to compel.
At the February 10, 2021 hearing on Higginson’s motion, his counsel
characterized Kia’s further supplemental responses as “code-compliant” but
“incredible,” thus justifying further inquiry into the scope of Kia’s search.
Kia’s counsel agreed that its responses were code-compliant and insisted
“there [were] no responsive documents to [Higginson’s] request.” To the
extent Higginson was not satisfied with that response, Kia’s counsel faulted
Higginson for not propounding formal discovery to explore the scope of Kia’s
search.
The trial court (Judge Wohlfeil) denied Higginson’s motion. Although
the court found it “troubling” that Kia had initially “included objections in
[its] responses after the court had issued an order telling [Kia] not to do so,”
the court was “comfortable” with Kia’s verified discovery response and its
attorney’s affirmation at the hearing that no responsive documents existed.
The court warned, however, that if Higginson “ultimately prove[d] that
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[Kia]’s responses were not credible,” that circumstance “may lend itself to
additional consequences at or before trial.” The court elaborated: “In my
experience, these things have a way of coming full circle. So, if one side . . .
got away with one today, I suspect that eventually the court will figure that
out, and there will be a way of balancing the scales of justice.” The court
clarified, however, that its comments were “just dictum” and the court was
“not accusing or much less finding that the defense ha[d] gotten away with
one.”
4. Higginson Deposes Kia’s RFP Verifier
About one month later, Higginson took the deposition of the Kia
employee who verified Kia’s RFP responses, paralegal Deborah Avalos.
Avalos testified that she searched for responsive documents by requesting
information from the relevant departments within Kia based on the court’s
revised definition of “engine defects.” Those departments, in turn, ran
queries for responsive documents and reported their findings back to Avalos.
Avalos accepted the departments’ responses and did not ask follow-up
questions, even when the departments reported that they had no responsive
documents. Avalos did not recall specifically how the departments ran their
queries in this case — “using all of the terms [within the definition of ‘engine
defects’] together” or “running the terms individually” — but she clarified
that the departments “normally run it both ways, all together and separate,”
and that Kia’s search in this case was not “any different than the search they
normally do.” Avalos was shown the NHTSA Letter during her deposition,
but she did not know if she had seen it before.
Higginson also sought to depose Kia’s “person most qualified” regarding
Kia’s search for responsive documents, incidence and symptoms pertaining to
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the defined “engine defects,” and Kia’s “awareness of these issues in 2013 Kia
Soul vehicles over time.” Kia objected to Higginson’s deposition notice,
including to the court-adopted definition of “engine defects.” The parties
ultimately narrowed the deposition topics to exclude those technical matters
pertaining to “engine defects” and topics related to Avalos’s search, without
prejudice to Higginson’s right to that additional discovery.
5. Kia Moves for Summary Adjudication
In May 2021, about three months after the most recent discovery
hearing, Kia moved for summary adjudication of certain of Higginson’s
claims. Higginson responded that Kia’s failure to produce responsive
documents and knowledgeable deposition witnesses justified denying Kia’s
motion or, at a minimum, warranted a continuance to allow further
discovery. As evidence that Kia was improperly withholding responsive
documents, Higginson’s counsel again cited the NHTSA Letter. 7 In reply,
Kia argued no further discovery was necessary because it had already served
“truthful[]” supplemental RFP responses that confirmed no responsive
documents existed.
The trial court (Judge Wohlfeil) denied Higginson’s request for further
discovery and granted Kia’s motion, in part. As to discovery, the court found
Higginson’s request for a continuance was untimely: “[Higginson] has had
several months to conduct discovery and seek court intervention with respect
to any discovery disputes. Specifically, the discovery disputes reflected
7 Higginson’s attorney also cited (1) a consent order between Kia and
NHTSA involving a different engine (the Theta II Engine) in which Kia had
made “a voluminous production of information”; and (2) a Los Angeles
superior court’s order in a different case denying Kia’s motion for summary
adjudication because evidence showed Kia was aware of engine defects in its
vehicles.
15
within [Higginson’s opposition papers] took place in early 2020. However,
the opposition to this motion was filed on July 26, 2021. Even assuming [Kia]
has not properly responded to written discovery and did not participate in the
[person most qualified] deposition in good faith, [Higginson] had ample time
to remedy these issues prior to filing the opposition to this motion. Trial is
currently scheduled for October 22, 2021. Thus, [Kia] cannot reasonably
delay filing this motion. Given these circumstances, a denial or continuance
of this motion is not warranted.” 8
On the merits of Kia’s motion, the court granted summary adjudication
in part, leaving Higginson with claims for (1) violating the Song-Beverly Act
by failing to repurchase or replace the subject vehicle, (2) breach of express
warranty, and (3) fraud by omission.
6. Higginson Seeks Terminating Sanctions on the Eve of
Trial
After numerous continuances, 9 the matter was called for trial in
November 2022. On November 10, 2022, the case was reassigned for trial
from Judge Wohlfeil to Judge Gregory Pollack. 10
8 A decision to grant or deny a request for continuance to oppose a
summary judgment motion is “vested in the trial court’s discretion.”
(Braganza v. Albertson’s LLC (2021) 67 Cal.App.5th 144, 152.) Higginson did
not further challenge the court’s continuance order by seeking a writ or other
review, and he does not argue on appeal that the court abused its discretion
by denying his requested continuance.
9 When the trial court granted these continuances, the court did not
reopen discovery.
10 Our discussion of trial court actions taken after this reassignment are
to actions taken by Judge Pollack.
16
On the first day of trial (Monday, November 14, 2022), one of
Higginson’s trial lawyers informed the court that Higginson was preparing to
move for terminating sanctions based on her firm’s discovery just days earlier
of proof that Kia engaged in “a very huge discovery abuse” by serving false
RFP verifications and withholding “responsive documents that should have
been produced.” The attorney explained: “On Friday, for the first time, we
saw that . . . the . . . verifier of the discovery responses . . . verified it falsely.
[¶] . . . [¶] The managing partner at my firm has been working all weekend
on this issue because we just found all of these publicly available documents
that were not even in the production. And it’s very concerning because it
goes directly to all of our elements in the trial in this matter. [¶] For
example, it shows that they knew of these defects; that they did not know
how to fix them; that they had all these internal investigations going on. And
that goes directly to our request for civil penalties in the matter, in addition
to our fraud cause of action.” Higginson’s attorney explained that Judge
Wohlfeil had denied Higginson’s earlier motion to compel compliance “based
on the fact that the [RFP] verifier had stated that everything was produced
and that responses were code compliant.” Counsel insisted that the
anticipated sanctions motion was “by no way a means to continue trial or
anything like that.” When the court asked counsel if she had what she
“need[s] to prove [her] case against [Kia],” counsel responded, “We have the
documents here, yes.”
For his part, Kia’s trial counsel responded that he “was involved during
this discovery phase” and that there were “no documents that have been
withheld in response to any discovery requests.” Counsel said he would “fully
address” Higginson’s sanction request once a motion was filed. Kia’s attorney
also informed the court that he suspected many of the documents that
17
Higginson would use to show that Kia withheld responsive documents in this
case were produced in another case subject to a protective order and that
Higginson’s use of those documents in this case was “probably a violation of
that protective order.”
The next day, Higginson filed a motion for terminating sanctions or,
alternatively, for issue or evidentiary sanctions. He argued that the
requested relief was warranted because Kia “(1) intentionally withheld
damaging evidence, in violation of the court’s October 28, 2020 discovery
order; (2) falsely claimed in its second supplemental responses that no
responsive documents exist (when responsive documents do exist . . .); [and]
(3) falsely verified those responses.” Higginson’s motion explained how the
proof of Kia’s alleged misconduct came to light. The week before trial,
Higginson’s trial counsel told her firm’s managing partner that Kia had
produced no documents in response to the court’s discovery order, claiming no
documents existed. “Surprised by [this],” the managing partner looked
through other NHTSA investigations and other information that Kia had
produced in other cases the firm was handling. This investigation led to the
discovery of documents produced in Creighton v. Kia Motors America, Inc.
(Super Ct. Sac. County, 2018, No. 34-2018-00234795), which, although it
related to a different Kia engine (the Theta II engine), involved a voluminous
document production that included documents regarding internal
investigations and communications regarding the Gamma engine at issue in
this case. Higginson’s lawyers then visited NHTSA’s website and found a
letter dated June 28, 2019, from Kia to NHTSA (Kia’s Response Letter)
responding to the NHTSA Letter. Kia’s response — which Kia never
produced in discovery in this case — referenced Kia’s production of
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documents responsive to NHTSA’s requests, some of which were also
responsive to Higginson’s requests.
The court did not address the sanctions motion until after trial
testimony began. The managing partner of the law firm representing
Higginson argued the motion along with trial counsel. The managing partner
explained that although he “usually do[es]n’t come into these arguments,” he
was arguing in this case “because [it] is a serious matter” involving “a willful
failure to respond with responsive documents.” When the court interjected,
“But we have the documents, though, right?” the managing partner
responded, “No, no, no. We don’t have the documents.” The managing
partner elaborated that while he “provided the court with only publicly
available documents” regarding NHTSA, his junior “attorneys didn’t even
know that such documents existed because they[] [were] looking at [Kia’s]
verified response . . . that says no documents exist.” The court replied, “If
what you’re saying is correct, you still don’t have the documents you
requested in discovery. And those documents could well be relevant in this
case.”
Exploring possible remedies, the court posited that “one option on the
table is to declare a mistrial and order the defense to pay all of plaintiff’s
attorneys’ fees and costs associated with this trial up to now and then” set a
new trial date after Higginson had “an opportunity to get the[] documents
and take whatever discovery is necessary.” The managing partner found this
proposal acceptable; indeed, he was willing to accept a mistrial without
receiving attorney fees and costs. The court suggested that another possible
“alternative would be to just continue on with this trial and come up with
some harsh jury instructions. But that seems inadequate if there’s still
19
discovery out there that has been blocked from the plaintiff, that the
plaintiff’s entitled to get.”
Kia responded that Higginson was improperly trying to relitigate the
motion to compel compliance that Judge Wohlfeil had already addressed.
The court probed, “But if your response is ‘[documents] don’t exist,’ a judge
ruling on a motion to compel . . . where the party’s response is, ‘they don’t
exist,’ has no choice but to deny the motion. You can’t compel production of
that which doesn’t exist. The problem here is the response was wrong.” Kia
responded, “It’s not wrong.”
Kia then pivoted to the timing of Higginson’s sanctions request, asking,
if Higginson’s attorneys “had [the NHTSA Letter] back at the verifier’s
deposition . . . about a year ago,” then “why didn’t this motion get brought
until the middle of trial?” The court redirected this question to Higginson.
The managing partner explained that after Judge Wohlfeil denied the motion
to compel compliance based on the verified RFP responses, the associate
attorneys handling the case “didn’t know what else to do” other than to rely
on Kia’s verified responses. The court responded, “But you had the NHTSA
reports that showed there had to have been documents.” The managing
partner answered, “Well, their testimony was there was no such documents,”
and “there is not much we can do when somebody already provides verified
responses and then says there is no documents.’ . . . You can’t make a
falsified verification response . . . that we rely on and then claim, ‘Well, why
didn’t you come in earlier and get sanctions.’ ” The court asked how
plaintiff’s counsel could say their “reliance was reasonable” when they had
“public documents that would show that clearly [Kia’s] response . . . was
inaccurate.” The managing partner explained that, despite his firm’s
attorneys having shown Judge Wohlfeil “some of those documents” in
20
connection with the motion to compel compliance, the court denied the motion
“because [Kia] provided a code-compliant response.”
The trial court asked the attorneys if they had agreed on search terms
for Kia to use in responding to the RFPs. Kia claimed they had; Higginson
claimed they had not and that Kia had refused to even meet and confer on
the issue. The court clarified, “When it comes to . . . my court, [the parties]
don’t get out of the court until there’s an agreement on what the search terms
are going to be,” after which the parties and the court engage in an iterative
process to “keep whittling it down until we get a reasonable number of
documents.” When the court asked Kia’s counsel, “Did that happen or not?”
counsel responded, “It did.” When the court directed Kia, “Tell me what the
search terms were,” Kia responded by reading the court-adopted definition of
“engine defects.” In trying to clarify whether Kia had searched only for the
entire definition of “engine defects” or its component elements, the court
clarified, “ ‘Search term’ is a term of art. [¶] . . . [¶] If you describe a bunch of
defects in kind of a narrative fashion, that wouldn’t be considered a search
term.” Kia did not respond to this, but rather, changed the subject to the
timing of Higginson’s sanctions request. When the court again asked, “What
were the search terms that were used?” Kia deferred to Avalos’s deposition
testimony that Kia “ordinarily run[s] a query using all of the terms together
and running the terms individually.” This appeared to satisfy the court.
The trial court revisited the timing of Higginson’s sanctions request,
asking why he was making the request “in the middle of trial” when it
appears that the documents giving rise to the request were already in his
lawyers’ files. The managing partner explained that his associate attorneys
handling this case had no impetus to search Kia’s production in other cases,
particularly when Kia said it had no responsive documents and did not
21
otherwise direct Higginson’s counsel to Kia’s document productions in other
cases (as Kia often did). The managing partner emphasized that it was only
in his role as managing partner that the issue came to light because the
associate attorneys at his firm “don’t know that people lie in verified
responses, and they’re relying on those representations.”
At this point, the trial court declined to declare a mistrial, reasoning
Higginson should have raised the issue sooner: “Since the wrongful behavior
on the part of Kia was available to the plaintiff months ago or even years ago,
I really can’t declare a mistrial because, basically, during trial it surfaced
that there were things in the plaintiff’s file that they didn’t really realize the
significance of until they were doing their final preparation.” Instead, the
court stated it would continue to evaluate the appropriate remedy based on
evidence introduced at trial regarding Kia’s noncompliance with its discovery
obligations. The court warned, “At a minimum, . . . if the evidence is that
there [were] improper discovery responses, it will clearly be met with a very
strong jury instruction.”
Later that day, after the conclusion of Higginson’s live witnesses — he
still intended to read the deposition testimony of RFP-verifier Avalos —
Higginson dismissed his express warranty claim. Kia then moved for nonsuit
on Higginson’s fraud cause of action. The court observed that it had “not
heard any evidence of fraud.” Higginson’s counsel explained that this was
because of Kia’s discovery misconduct in failing to produce documents. The
court asked, without Kia’s production, “what evidence is the jury going to see?
Your feeling that if [Kia] had complied there might be other stuff? That can’t
be . . . argued to the jury. If it’s not in evidence it can’t be argued to the jury.”
The court deferred ruling on Kia’s nonsuit until the close of all evidence.
22
The next day, the accuracy of Kia’s RFP responses resurfaced when the
court and counsel were discussing the admissibility of the NHTSA Letter.
Higginson argued it was necessary to admit the letter to prove the falsity of
Kia’s verified RFP responses that it had no responsive documents and of
Avalos’s related deposition testimony. 11 The court indicated it was inclined
to admit the letter with a limiting instruction that the jury “can’t consider the
letter for the truth of any facts asserted therein. But they can consider it as
something that, based on the evidence here, may have been seen [by Avalos]
and not produced.”
Higginson acknowledged the evidentiary hurdle created by the fact that
Kia’s Response Letter was not used as an exhibit during Avalos’s deposition.
But he argued the publicly available document should still be admitted
because it showed Kia falsely asserted in its verified RFP responses that it
had no responsive documents.
Upon further reflection, the trial court ruled the correspondence
between Kia and NHTSA was inadmissible on evidentiary grounds and —
due to Higginson’s delay in raising the issue — would not be admitted to
establish the falsity of Kia’s RFP responses. While addressing the
admissibility of Kia’s Response Letter, the trial court asked Kia’s counsel for
his view on why that letter was not responsive to Higginson’s RFPs. The
attorney explained that Kia found no responsive documents “because the
search terms . . . were defined with the conjunctive, not the disjunctive,” and
the response letter did not address every symptom included in the definition
11 In this context, the trial court characterized as “squirrely” Avalos’s
deposition testimony that she may or may not have seen the NHTSA letter.
23
of “engine defects.” 12 After counsel reiterated this view, the court
interjected, “Wait a minute. It has to have all of those things? [¶] . . . [¶]
[T]hey would have to have every single one of those conditions to be
produced?” The court “reject[ed] the defense’s position” as a “garbage
argument,” that is “not a fair” or “reasonable reading at all” of the definition
of “engine defects.” The court added, “No judge would have said that all of
those defects have to be present . . . . That would make no sense at all.”
Based on Kia’s approach to the search process, the court concluded “it’s
clear . . . that [Avalos’s RFP] verification was erroneous; that, indeed, there
were documents responsive. There’s no other way to look at this. . . . This
response was inaccurate, okay.” The court asked, “So what do we do?”
The court acknowledged the dilemma created by the court’s exclusion of
the correspondence between Kia and NHTSA: “I don’t think we can just give
the jury the NHTSA request and that response . . . because it has . . . all
kinds of stuff they shouldn’t see. But if we give them nothing, then we have a
situation where, if we go only on the evidence . . . , I have to grant the fraud
nonsuit because there’s no evidence. But why is there no evidence? Because
there was a false verification.” As to the false verification, the court clarified,
“When I say false, . . . I’m not going to make the court finding that this was a
willful intent to deceive. I’m just saying that . . . the RFP response that there
were no documents was just wrong. But by giving that response, it really cut
off plaintiff’s ability to discover.”
Surmising that the false verification related only to Higginson’s fraud
cause of action, the trial court raised the prospect of bifurcating Higginson’s
12 Counsel elaborated: “So when she ran the search with the conjunctive,
there were no responses; because this letter may mention fires, but it doesn’t
mention rattle noise, it doesn’t mention oil chamber restriction, some other
issues that they claim.”
24
Song-Beverly Act claim from his fraud claim. But Higginson objected that
the false verification also impacted his claim for a civil penalty under the
Song-Beverly Act, as unproduced Kia records could show that Kia was aware
it was unable to resolve certain alleged defects. The court responded, “You’re
right, that could surface.”
But the court was “still troubled by the fact that” the false verification
“was brought up so late.” The court elaborated: “It troubles me that you
had . . . the NHTSA request and Kia’s response, and nothing further was
done once Judge Wohlfeil ruled. I mean, a trial court does have the power to
revisit a law-and-motion ruling, okay. I’m not saying I can’t do that, but I’m
not inclined to do that. This should have been brought up. It should have
been taken back to Judge Wohlfeil. A writ could have been taken if he
outright refused to do anything about it. It’s not for the court — not only in
the middle of trial, the very last day of trial — to deal with this discovery
issue.” The court considered instructing the jury that it could consider Kia’s
false verification “in deciding the case,” but the court recognized that this
approach “wouldn’t give [Higginson] a fraud cause of action.”
As to the falsity of Kia’s verification, the court acknowledged it “was
false,” but the court expressly declined to find that “it was intentional.” The
court theorized that “it may have been negligent, left hand didn’t know what
the right hand was doing. There could be some benign explanation.” After
all, the court reasoned, the fact “that Kia has already produced [the
responsive documents] in other litigation . . . suggests the failure to produce
it here may have been as a result of innocence or negligence as opposed to
intent, because . . . why would you intentionally pull something back that you
already produced to the litigation world?” Ultimately, the court concluded
the question of the falsity of the verification “should go to the jury as a jury
25
instruction.” Based on that approach, the court indicated it would grant
Kia’s nonsuit on Higginson’s fraud claim, based “on the absence of evidence,”
if Kia were to renew the motion at the close of evidence. Kia later renewed
its nonsuit motion and the trial court granted it.
The court eventually fashioned the following special jury instruction to
address Kia’s RFP responses: “204.2 [¶] During pretrial discovery, Kia was
asked to provide certain documents to Mr. Higginson’s attorney. Kia’s
written responses, verified by Kia’s representative Deborah Avalos,
incorrectly stated that there were no documents that were responsive to the
request. If you decide that Kia’s responses that there were no documents
were intentionally false, you may decide that production of the documents
would have been unfavorable to Kia.” 13
Higginson was unable to subpoena RFP-verifier Avalos to appear at
trial, so the jury heard only portions of her deposition testimony. As noted,
the court also excluded the NHTSA Letter and Kia’s Response Letter. 14
Therefore, the only evidence the jury heard regarding Kia’s RFP responses
were excerpts from Avalos’s deposition testimony stating that Kia had
conducted a diligent search and found no responsive documents, and certain
13 The trial court gave the jury two additional instructions regarding the
strength of the parties’ evidence. (See CACI No. 203 [“Party Having Power to
Produce Better Evidence,” which provides: “You may consider the ability of
each party to provide evidence. If a party provided weaker evidence when it
could have provided stronger evidence, you may distrust the weaker
evidence.”]); CACI No. 205 [“Failure to Explain or Deny Evidence,” which
provides: “If a party failed to explain or deny evidence against it when it
could reasonably be expected to have done so based on what it knew, you may
consider its failure to explain or deny in evaluating that evidence. [¶] It is
up to you to decide the meaning and importance of the failure to explain or
deny evidence against the party.”].)
14 Higginson does not challenge the trial court’s evidentiary rulings.
26
of Higginson’s RFPs and Kia’s corresponding verified responses claiming that
responsive documents never existed.
Based on the court’s special jury instruction, Higginson’s counsel
argued in closing that Kia had “falsified its verification” concerning
documents about internal investigations and withheld necessary information.
She argued Kia had prevented “crucial evidence from coming out,” which kept
the jury from seeing Kia’s “e-mails and communications with governmental
agencies regarding the very defect in [Higginson]’s vehicle and the
components that he complained about.” Highlighting the court’s special
instruction on the matter, counsel argued the jury could decide that all of the
evidence that Kia withheld would have “been bad for them and would have
gone against [Kia’s] defense.” Finally, she argued that Kia “didn’t produce
any of the documents related to NHTSA that they say they don’t have. But
we know that’s false.”
D. The Jury’s Deliberations and Verdict
After deliberating for about a half-hour, the jury sent the court a note
about the special instruction regarding Kia’s RFP responses. The jury asked:
“What is the basis of instruction 204.2 being declared false?”
The trial court told counsel: “This note doesn’t surprise me. It’s
actually an obvious note that I was concerned might be asked: ‘What is the
basis of Instruction 204.2 being declared false?’ Well, it’s because there are
documents that we know of that should have been produced, but I kept those
documents out for evidentiary reasons . . . and we didn’t admit them into
evidence. [¶] . . . [¶] So I thought I could nuance this thing and just make an
instruction without . . . letting them see the evidence that supported the
instruction.”
27
The court concluded it would (and did) answer the jury as follows:
“Based upon the applicable rules of evidence, this court cannot answer your
question.” The court told counsel, “I don’t know what else I can do. It’s
absolutely a good question. It’s a question I would ask if I was on that jury,
basically, ‘What was false about their response? What were the documents
that they held back?’ ”
After deliberating for about half a day, the jury returned a special
verdict finding that (1) Higginson had purchased a 2013 Kia Soul distributed
by Kia; (2) Kia gave him a written warranty; and (3) the vehicle had a defect
covered by the warranty that substantially impaired its use, value, or safety
to a reasonable buyer in Higginson’s situation. But the jury found that Kia
or its authorized repair facility did not fail to repair the vehicle to match the
written warranty after a reasonable number of opportunities to do so.
The court entered judgment in Kia’s favor.
E. Posttrial Motions
Higginson moved for a new trial or judgment notwithstanding the
verdict (JNOV). He argued, in part, that Kia’s withholding of responsive
discovery materials constituted an irregularity in the proceedings and
discovery abuse warranting terminating sanctions. Higginson reasoned that,
had Kia produced its internal investigations into the alleged defect, its
rationale for issuing TSBs, customer complaints, and failure rates for the
Gamma engine, he “would have had a fair chance” to show the jury that Kia
knew the cars were defective when it sold him his car, establishing his
fraud claim and entitlement to punitive damages. “After all,” he explained,
“the NHTSA investigation was prompted by over 200 customer reports of
non-crash fires in Kia vehicles . . . and looked into Kia’s decision to conduct a
safety recall due to a potential risk of fire . . . . There is thus reason to
28
believe Kia withheld documents that could show it was aware 2013 Kia Souls
contained an engine that could spontaneously catch fire, at great risk of
injury, before it sold the same model to plaintiff that Kia had to repair
pursuant to the very fire safety recall NHTSA looked into as part of its
investigation.” Higginson argued that in a new trial, the court should do one
of the following things: “(1) grant JNOV on liability and [hold a trial] solely
for a determination of damages; (2) grant a new trial with issue sanctions
precluding Kia from contesting the existence of an unfixable defect and Kia’s
knowledge of that defect at the time it sold the car to plaintiff; or, (3) at a
minimum, grant a new trial and once again order Kia to produce all of the
relevant documents, so that plaintiff may finally make his case.” Higginson
also requested “monetary sanctions for the cost of the first trial, since Kia’s
abuse has required a second trial.”
The trial court held extensive proceedings on Higginson’s motion. At
the initial motion hearing, the court focused primarily on determining when
Higginson’s counsel learned that it possessed the NHTSA Letter and Kia’s
Response Letter in any of its files. The court reasoned that even if these
letters were in files pertaining to other cases, as “a law firm, . . . any
knowledge of your lawyers is imputed to the lawyer handling the case.”
Higginson’s counsel informed the court that they believed they had the
NHTSA Letter as early as August 2019 in connection with a case involving
Theta II engines. The managing partner surmised his firm first obtained
Kia’s Response Letter by accessing it from NHTSA’s public website a few
days or weeks before trial began in this case. The trial court ordered
Higginson to submit supplemental briefing confirming these facts.
In a supplemental brief, Higginson’s lawyers reported that they
searched firm records and determined that Kia first produced the Kia
29
Response Letter in February and March 2020 in cases involving Theta II
engines. Kia produced the letter in those cases subject to protective orders
that prohibited their use in other cases without Kia’s consent and with heavy
redactions of material relating to engines other than the Theta II (like the
Gamma engine at issue here). One of Higginson’s attorneys also determined
he had downloaded the Kia Response Letter from NHTSA’s website and
saved it on his personal computer in October 2020 in connection with a
different case involving the Gamma engine. Higginson’s counsel explained to
the court that “the firm does not systematically track and compare document
productions in different unrelated cases,” particularly when those
productions are governed by protective orders.
After a follow-up hearing to address the parties’ supplemental briefing,
the trial court denied Higginson’s motions for a new trial and JNOV. The
court’s written ruling briefly touched on Kia’s discovery conduct: “Kia
employed a ‘search term’ approach, that, in retrospect, was destined to
discover no responsive documents. It used a conjunctive block search
narrative rather than separate search terms, which would result in a positive
discovery only if the entire narrative block was found. It was a search
strategy that was essentially ‘dead on arrival.’ ” 15
But the majority of the court’s ruling focused on Higginson’s counsel’s
handling of Kia’s discovery conduct. First, the court noted that Higginson
15 The court characterized Kia’s conduct less charitably during the
hearing, calling it “criminally stupid” and “very stupid to conduct a search . . .
in that fashion.” The court, admitting it was “purely speculating,” imagined
that the search might have been done by a paralegal on “her first day on the
job.” However, Higginson’s supplemental submission to the trial court
included a declaration by RFP-verifier Avalos from a different case in which
she stated she is “a senior litigation paralegal with Kia” and “ha[s] been
employed in this role for more than 16 years.”
30
had not made an offer of proof supported by documents showing that “there
must have been damaging responsive documents not produced.” This gave
the court “no way . . . to determine the existence of which . . . documents Kia
should have produced to Higginson in pretrial discovery, whether they would
have helped or hurt Kia’s defense, [or] whether they would even be relevant
to Higginson’s claim.” The court viewed Higginson’s argument as “tak[ing] us
down a path of pure speculation . . . that the not-produced, responsive
documents . . . would have been material, relevant and admissible.”
For example, the court reasoned that to the extent Kia’s Response
Letter revealed the existence of information that occurred after Higginson’s
purchase and lease, that information would not be relevant to Higginson’s
fraud claim. Similarly, the court reasoned that “even if [the withheld
documents] showed extensive knowledge on the part of Kia of defects in other
cars, [they] could have played no role in Higginson’s lemon law claim”
because the jury found — even “without the documents” — “that the vehicle
was . . . defective” but that Kia “timely repaired” it, “result[ing] in a ‘no
liability’ finding in the lemon law case.”
Second, the court faulted Higginson for “abruptly resurrect[ing] . . .
during trial” a “seemingly settled” discovery dispute. In the court’s view,
Higginson should instead have moved for reconsideration of the discovery
issue before Judge Wohlfeil, taken a writ from Judge Wohlfeil’s ruling, or
raised the issue pretrial in a motion in limine.
Relatedly, “and perhaps most importantly,” the court “was greatly
concerned” by Higginson’s delay in raising the issue, considering that his
counsel obtained the NHTSA Letter in 2019 and Kia’s Response Letter in
early 2020. With that evidence in hand, the court reasoned, Higginson’s
“counsel could have taken a writ regarding Judge Wohlfeil’s decision,
31
propounded an interrogatory specifically requiring Kia to identify the ‘search
terms’ actually used in reaching its conclusion that there were no responsive
documents located, taken the deposition of the Kia employee who actually
conducted the search, called additional witnesses at trial including the
individual who authored [Kia’s Response Letter], etc. Instead, they did
nothing during the one-year prior to trial.”
Regarding the court’s grant of Kia’s motion for nonsuit on Higginson’s
fraud claim for a lack of evidence, the court observed that Higginson’s “papers
failed to point to any admitted evidence that would suggest that the nonsuit
should not have been granted.” To the extent Higginson blamed Kia for that
lack of evidence, the court faulted Higginson’s lawyers for failing to “have
some pre-filing evidence to support the claim.”
Finally, the court was satisfied that instructing the jury with “a special
punitive jury instruction” and pattern instructions regarding evidentiary
inferences adequately addressed Kia’s alleged discovery misconduct.
The trial court thereafter awarded Kia $24,114.63 in prevailing-party
costs. The court denied Higginson’s motion to tax those costs.
Higginson appeals from the judgment and the postjudgment orders
denying a new trial, JNOV, and his motion to tax Kia’s costs.
III. DISCUSSION
A. The Trial Court Acted Within Its Discretion in Denying
Terminating Sanctions
Higginson contends the trial court abused its discretion by denying his
request for terminating sanctions because that remedy was “required” by
Kia’s discovery misuse. We disagree.
32
1. Relevant Legal Principles
The Civil Discovery Act authorizes sanctions for conduct constituting
misuse or abuse of various discovery methods. (City of Los Angeles v.
PricewaterhouseCoopers, LLP (2024) 17 Cal.5th 46, 61 (City of Los Angeles).)
Misuses of the discovery process “ ‘include, but are not limited to,’ failures to
respond or submit to authorized methods of discovery, making unmeritorious
objections without substantial justification, and making evasive responses.”
(Id. at pp. 64–65; see § 2023.010.) Available remedies for discovery misuse
include “monetary sanctions, evidentiary sanctions, issue sanctions, and
terminating sanctions.” (Lopez v. Watchtower Bible & Tract Society of New
York, Inc. (2016) 246 Cal.App.4th 566, 604 (Lopez); see City of Los Angeles, at
p. 62; § 2023.030, subds. (a)–(d).)
“Courts have articulated two major guidelines for imposing sanctions
under . . . the . . . Civil Discovery Act . . . . First, because the very purpose of
discovery is to promote the efficient and effective conduct of trial, discovery
sanctions are not to be used ‘to provide a weapon for punishment, forfeiture
and the avoidance of a trial on the merits.’ ” (City of Los Angeles, supra,
17 Cal.5th at p. 63; see Lopez, supra, 246 Cal.App.4th at p. 604 [“The trial
court should select a sanction that is ‘ “ ‘tailor[ed] . . . to the harm caused by
the withheld discovery.’ ” ’ ”].) “Second, a more severe sanction is disfavored
if a lesser sanction is available.” (City of Los Angeles, at p. 63; see Lopez, at
p. 604.)
“This means that a court ordinarily must consider monetary
sanctions . . . before it proceeds to consider whether other nonmonetary
sanctions are appropriate to address the misconduct at issue.” (City of Los
Angeles, supra, 17 Cal.5th at p. 63; see Lopez, supra, 246 Cal.App.4th at
p. 604 [“The discovery statutes . . . ‘evince an incremental approach to
33
discovery sanctions, starting with monetary sanctions and ending with
the ultimate sanction of termination.’ ”].) Indeed, under the Civil Discovery
Act, monetary sanctions are generally considered mandatory, whereas
nonmonetary sanctions are discretionary or permissive. (Compare
§ 2023.030, subd. (a) [“If a monetary sanction is authorized by any provision
of this title, the court shall impose that sanction” (italics added)], with id.,
subd. (b) [“The court may impose an issue sanction” (italics added)]; see City
of Los Angeles, at p. 62 [noting that subds. (b)–(e) of § 2023.030 do not
“mandate[] imposition of the[] various nonmonetary sanctions in the same
manner as subdivision (a)” makes mandatory the imposition of monetary
sanctions].)
“Although in extreme cases a court has the authority to order a
terminating sanction as a first measure [citations], a terminating sanction
should generally not be imposed until the court has attempted less severe
alternatives and found them to be unsuccessful and/or the record clearly
shows lesser sanctions would be ineffective.” (Lopez, supra, 246 Cal.App.4th
at p. 604.) Further, “[a] trial court must be cautious when imposing a
terminating sanction because the sanction eliminates a party’s fundamental
right to a trial, thus implicating due process rights.” (Ibid.; see Moofly
Productions, LLC v. Favila (2020) 46 Cal.App.5th 1, 12 [“ ‘A decision to order
terminating sanctions should not be made lightly.’ ”].) “ ‘But where a
violation is willful, preceded by a history of abuse, and the evidence shows
that less severe sanctions would not produce compliance with the discovery
rules, the trial court is justified in imposing the ultimate sanction.’ ” (Moofly,
at p. 12.)
“A court has broad discretion in selecting the appropriate penalty, and
we must uphold the court’s determination absent an abuse of discretion.”
34
(Lopez, supra, 246 Cal.App.4th at p. 604.) Under this standard, “ ‘[w]e
will reverse only if the trial court’s order was arbitrary, capricious, or
whimsical.’ ” (Padron v. Watchtower Bible & Tract Society of New York, Inc.
(2017) 16 Cal.App.5th 1246, 1260.) We “ ‘resolve all evidentiary conflicts
most favorably to the trial court’s ruling’ ” and, “ ‘where the evidence is in
conflict, we will affirm the trial court’s findings.’ ” (Ibid.) The appellant
bears the “ ‘burden to affirmatively demonstrate error.’ ” (Ibid.)
2. Analysis
The question Higginson poses here is not whether Kia’s conduct
presents such an “extreme case” of discovery abuse that the trial court was
allowed to proceed straight to terminating sanctions. Instead, Higginson
maintains Kia’s conduct required the trial court to skip over every form of
lesser sanction and begin with terminating sanctions. We disagree.
Preliminarily, we are unpersuaded by Higginson’s contention that “the
trial court applied the wrong standard on willfulness.” Specifically,
Higginson argues that “although the trial court agreed that Kia’s responses
were false and that Kia’s search was deficient,” the court erred by finding
that Kia’s conduct was not “willful” because Kia did not act with the “willful
intent to deceive.” Higginson misapprehends the trial court’s ruling.
The court here did not apply a willfulness standard; rather, the court
declined to make a finding on the issue and reserved the issue for the jury.
The court contemplated (in declining to declare a mistrial) that Higginson
would “show the jury” his impeachment of Avalos’s RFP verification and that
the process would “play . . . out in front of the jury.” If the jury found Kia’s
conduct willful, the court’s special instruction would effectuate an issue
sanction by allowing jurors to “decide that production of the documents would
35
have been unfavorable to Kia.” 16 Our court has approved of issue sanctions
that allow for such negative inferences to be drawn from a party’s willful
failure to produce responsive documents. (See, e.g., Lopez, supra, 246
Cal.App.4th at p. 605 [“When a party does not produce ordered documents,
the court is entitled to infer the documents would contain evidence damaging
to that party’s case and instruct the jury accordingly” as an issue sanction].)
The trial court’s selection of this remedy for Kia’s discovery misuse is
further supported by three circumstances that existed when the court ruled.
(See In re Robert A. (2007) 147 Cal.App.4th 982, 990 [“an appellate court
reviews the correctness of a record that was before the trial court at the time
it made its ruling”].) First, Kia had not yet definitively revealed that it
utilized a deficient conjunctive block-quote search approach. The subsequent
revelation of that information shed further light on the inadequacy of Kia’s
document production and the potential need for a stronger remedy. Second,
the trial court had not yet excluded the NHTSA Letter and Kia’s Response
Letter on evidentiary grounds. As we discuss below (see part III.B., post),
this development rendered ineffective the court’s otherwise-valid incremental
discovery sanction and warranted a new trial. Third, Higginson’s willingness
to accept a mistrial — with or without attorney fees incurred thus far —
indicates Higginson recognized there were suitable remedies available short
of terminating sanctions. That the trial court ultimately selected a different
incremental sanction does not change the fact that terminating sanctions
were not the only suitable remedy.
16 Although the trial court sometimes referred to the jury instruction as
“punitive,” we determine from the context of the record as a whole that the
court appropriately intended the instruction to be remedial rather than
punitive. (See City of Los Angeles, supra, 17 Cal.5th at p. 63 [“discovery
sanctions are not to be used ‘to provide a weapon for punishment, forfeiture
and the avoidance of a trial on the merits’ ”].)
36
Higginson’s argument that the trial court was required to impose
terminating sanctions is further undermined by our Supreme Court’s recent
clarification in City of Los Angeles that terminating sanctions — and other
nonmonetary sanctions — are not statutorily mandated. (City of Los Angeles,
supra, 17 Cal.5th at p. 62.) Indeed, even before City of Los Angeles, our court
concluded that terminating sanctions are not mandatory even in the face of
willful discovery misconduct or disobedience of court orders. (See Lopez,
supra, 246 Cal.App.4th at pp. 605, 606 [holding that a “terminating sanctions
order [that] was the first and only sanction imposed” for “willfully fail[ing] to
comply with [a] document production order” was “premature and
unsupported”].)
Higginson argues Kia’s conduct here was analogous to that of the auto
manufacturer in Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967,
where the appellate court held that the trial court erred by refusing to impose
terminating sanctions when the court learned midtrial that the manufacturer
continued to “flagrantly engage[]” in new manners of discovery abuse even
after violating four earlier court orders and remaining undeterred by the trial
court’s escalating monetary and issue sanctions. (Id. at pp. 993–994.) But
the Doppes court acknowledged its holding was “extraordinary” (id. at p. 971)
and “unprecedented” (id. at p. 996). And Higginson cites (and we have found)
no case that has followed Doppes for this unusual proposition. Significantly,
the Doppes court concluded terminating sanctions “were imperative” (id. at
p. 996) only after concluding the trial court acted within its discretion when
it — like the trial court here — first attempted to remedy the manufacturer’s
discovery abuse by instructing the jury about that conduct and allowing the
jury to draw a negative inference from it (id. at p. 994; see id. at p. 992 [“The
discovery statutes evince an incremental approach to discovery sanctions,
37
starting with monetary sanctions and ending with the ultimate sanction of
termination.”]; City of Los Angeles, supra, 17 Cal.5th at p. 63 [“a more severe
sanction is disfavored if a lesser sanction is available”]).
In sum, Higginson has not met his burden to show that the trial court
abused its discretion by declining to impose terminating sanctions as the first
remedy.
B. The Trial Court Abused Its Discretion by Denying
Higginson’s Motion for a New Trial
Alternatively, Higginson argues we should “at the very least” direct a
new trial and award monetary and other sanctions “necessary to remedy
Kia’s misconduct.” Kia did not address this issue in its respondent’s brief. 17
We agree with Higginson that Kia’s discovery misuse constitutes an
irregularity in the proceedings that denied him a fair trial. Accordingly, he is
entitled to a new trial.
Section 657, subdivision (1) authorizes a trial court to grant a new trial
when there has been an “[i]rregularity in the proceedings of the court, jury or
adverse party . . . by which either party was prevented from having a fair
trial.” “[T]he denial of a motion for new trial is reviewed for abuse of
discretion, with the appellate court making an independent determination as
to whether any error was prejudicial.” (Argueta v. Worldwide Flight Services,
Inc. (2023) 97 Cal.App.5th 822, 832.)
As he did in the trial court, Higginson here relies heavily on Sherman
v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152 (Sherman), which we
17 “We nevertheless consider the point because a respondent’s failure to
address an issue raised in the opening brief is not a concession.” (Golden
Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467, 557,
fn. 48.)
38
find instructive. In Sherman, the product-liability defendant’s document
production included only three incident reports regarding the subject product.
(Id. at p. 1157.) During closing argument, defense counsel emphasized the
limited number of incidents and reassured the jury that the defendant had
produced all responsive documents during discovery. (Id. at p. 1158.) After a
five-week trial, the jury deliberated for only 45 minutes before returning a
defense verdict. (Ibid.)
The Sherman plaintiffs “moved for a new trial on the grounds of
irregularity in the proceedings and newly discovered evidence.” (Sherman,
supra, 67 Cal.App.4th at p. 1159.) The plaintiffs “claimed that one week after
the verdict, they learned for the first time [the defendant] had falsely
answered discovery inquiries and ‘intentionally failed to disclose highly
relevant and material information and documents directly bearing on the
fundamental issues of this action.’ ” (Ibid.) The plaintiffs received “a fluke
phone call from a Texas attorney” (id. at p. 1162) who had litigated against
the same defendant and obtained 24 incident reports regarding the product
at issue in the Sherman plaintiffs’ case (id. at p. 1159). The Texas attorney
provided those reports to the Sherman plaintiffs. (Ibid.) The plaintiffs
asserted in their new trial motion that the “newly discovered evidence was
requested in discovery, but [the defendant] had denied its existence” and
“misled the jury into believing mishaps were infrequent.” (Ibid.)
The Sherman defendant opposed the motion, explaining it withheld
certain of the reports because it deemed them irrelevant, and others because
they “were inadmissible for one reason or another.” (Sherman, supra,
67 Cal.App.4th at p. 1159.) The defendant also argued any “nonproduction
was immaterial” because the plaintiffs introduced evidence of incidents
beyond the three documented in incident reports; accordingly, the
39
“introduction of a few more incident reports would have been cumulative and
unlikely to make any difference in the outcome.” (Id. at pp. 1159–1160.)
“The trial court accepted [the defendant]’s no-harm, no-foul argument”
and denied the plaintiffs’ new trial motion. (Sherman, supra, 67 Cal.App.4th
at p. 1160.) The court reasoned that “ ‘the jury was out only 45 minutes’ ”
and the nonproduced documents, if anything, helped the defendant because
they largely related to different mechanisms of injury than the Sherman
plaintiffs’ suffered. (Ibid.)
The Sherman court reversed. Focusing on the materiality of the
withheld evidence, the court observed that whereas “[t]he jury knew directly
about only three incidents, . . . there were at least eight times that many
incident reports!” (Sherman, supra, 67 Cal.App.4th at p. 1161.) The court
found not only that the “sheer number of documents” was “itself of
ponderable significance” (ibid.), but also that the nonproduction prevented
the plaintiffs from both “obtaining the information contained in the reports”
and “from following up” on it (id. at p. 1162). The Sherman court observed
that the defendant’s “concealment of the subject documents deprived the
[plaintiffs] of the chance to tell the jury the whole story” (ibid.) and deprived
the jury of the “chance to evaluate liability against the backdrop of the big
picture” (id. at p. 1155). Under these circumstances, the Sherman court held
that the plaintiffs “were entitled to a new trial on the ground of irregularity
in the proceedings preventing them from obtaining a fair trial” (id. at p. 1162,
fn. 5, citing § 657, subd. (1)) and on the ground of newly discovered evidence
(id. at p. 1162; see § 657, subd. (4)).
The Sherman court also found that the defendant’s “continuing
disregard of its discovery obligations” and “its witnesses’ utter lack of candor,
if not outright lies, at trial” (Sherman, supra, 67 Cal.App.4th at p. 1162)
40
“subverted justice” (id. at p. 1156) and necessitated the imposition of
monetary sanctions “in an amount at least sufficient to compensate the
[plaintiffs] for the costs, including attorney fees, of the first trial” and “their
costs on appeal” (id. at p. 1164). The Sherman court explained that it
published its opinion “to send a loud and clear message to litigants and
counsel alike” that the courts “will not tolerate the disgraceful tactics” at
issue in the case and “to ensure that any victory achieved by such
methods . . . will be short-lived and costly.” (Id. at p. 1156.)
As in Sherman, several considerations persuade us that Kia’s discovery
misuse constitutes an irregularity in the proceedings that prevented
Higginson from having a fair trial.
First, it is essentially undisputed that Kia withheld responsive
discovery on the alleged engine defects and falsely verified that such
documents “never existed.” 18 Indeed, even after extensive discovery
litigation and posttrial motion practice in the trial court, Kia still has not
produced responsive documents (beyond the service and warranty histories of
Higginson’s own vehicle and certain TSBs). This deprived Higginson of
essential discovery critical to all aspects of his case. For example, Higginson
showed in connection with his new trial motion that Kia’s document
production in similar consumer litigation amounted to about 1.8 million
pages. “The sheer number of documents is itself of ponderable significance,
and may explain [Kia]’s great efforts to conceal this evidence.” (Sherman,
supra, 67 Cal.App.4th at p. 1161.)
18 Most obviously, Higginson’s RFP No. 56 requested communications
between Kia “and any government agency or entity,” such as NHTSA. The
NHTSA Letter and Kia’s Response Letter are both clearly responsive to this
request, yet Kia did not produce either document to Higginson in this case.
41
Kia effectuated its nonproduction by giving an unduly narrow and
unreasonable “conjunctive” reading to the court-adopted definition of “engine
defects.” At best, this misreading was negligent. And the record suggests it
was worse than that. Kia ignored Higginson’s repeated efforts to meet and
confer regarding search terms. Kia’s verifier testified falsely in her
deposition that Kia usually searches both conjunctively and disjunctively and
that the search here was done diligently and in accordance with Kia’s usual
practice. Kia’s counsel consistently dodged the trial court’s attempts to pin
down Kia on the search terms it used; Kia only finally admitted midtrial that
it searched conjunctively for records that included the entire list of
symptoms. 19 Although the trial court did not find Kia’s conduct regarding
search terms was “willful,” the court characterized it unfavorably, calling it
“criminally stupid”; a “garbage argument”; “not a fair” or “reasonable
reading”; “destined to discover no responsive documents”; “ ‘dead on arrival’ ”;
and an approach that “make[s] no sense” and which “no judge would have”
intended. Under Sherman, it is our obligation “to ensure that any victory
achieved by such methods and challenged in this court will be short-lived and
costly.” (Sherman, supra, 67 Cal.App.4th at p. 1156.)
Second, although we concluded above (see part III.A.2, ante) that the
trial court’s selection of an issue sanction instead of a terminating sanction
was a reasonable choice when the court made it, it became clear by the
conclusion of trial that the jury instruction given on Kia’s discovery misuse
was ineffective and deprived Higginson of a fair trial. That is, because the
court excluded the NHTSA Letter and Kia’s Response Letter, and because
19 This belies Kia’s disingenuous claim in its appellate briefing that
Higginson “misrepresent[ed]” in his opening brief that Kia admitted it used a
conjunctive search term. As set forth in our factual summary (see part
II.C.6., ante), the record shows that Kia undeniably admitted this fact.
42
Kia invoked the protective orders in other cases to preclude their use in this
case of Kia’s document productions in those cases, the jury had no way of
knowing what documents Kia failed to produce or why its verification was
false. No other evidence was presented to the jury about Kia’s Response
Letter or the documents referenced in and attached to it. The jury therefore
had no way of knowing anything about what Kia withheld or why it did so.
Predictably, the jury expressed confusion and asked immediately after
beginning deliberations what was false about Kia’s discovery responses. The
court was not surprised by the jury’s “obvious note,” which asked a question
the court “would ask” if it were on that jury. The court “thought [it] could
nuance this thing and just make an instruction without . . . letting [the jury]
see the evidence that supported the instruction.” Yet, the court responded to
the jury’s note by saying that it “cannot answer your question.” Even Kia
conceded in its opposition to the new trial motion that the instruction
essentially required the jury to “speculate” as to the content of the missing
discovery. On this record, the only reasonable conclusion is that the jury
instruction ultimately proved inadequate to remedy Kia’s discovery violation
and to safeguard Higginson’s right to a fair trial — just as he argued in his
new trial motion.
Third, the trial court unduly focused on Higginson’s alleged lack of
diligence in uncovering Kia’s discovery misuse rather than on Kia’s discovery
misuse itself. Yet, neither the trial court nor Kia cited any authority holding
that a party’s delay in proving the other side’s egregious discovery violation is
a relevant factor to consider in determining the appropriate relief. Indeed,
while the new trial statute includes a diligence requirement for motions
premised on newly discovered evidence, the statute does not impose such a
requirement for motions premised on irregularities in the proceeding.
43
(Compare § 657, subd. (4) [authorizing a new trial based on “[n]ewly
discovered evidence, material for the party making the application, which he
could not, with reasonable diligence, have discovered and produced at the
trial” (italics added)] with id., subd. (1) [authorizing a new trial based on
“[i]rregularity in the proceedings of the court, jury or adverse party, or any
order of the court or abuse of discretion by which either party was prevented
from having a fair trial”].)
In any event, on our independent review of the record, the totality of
the circumstances show that Higginson was diligent enough. He proactively
sought to meet and confer with Kia regarding search terms. He proposed a
narrowed definition of “engine defects” that the trial court adopted. He filed
a motion to compel further responses when Kia served boilerplate objections.
He moved to compel compliance with Judge Wohlfeil’s discovery order when
Kia persisted in asserting objections even after the judge ordered that Kia
respond “without objection.” Once Kia supplemented its responses with code-
compliant assertions that responsive documents “never existed,” Higginson
was entitled to rely on that response. (See Pate v. Channel Lumber Co.
(1997) 51 Cal.App.4th 1447, 1454–1455 [when a party has served verified
responses confirming that no responsive documents exist, the opposing party
need not pursue a futile motion to compel before seeking an evidentiary
sanction during trial to exclude the introduction of unproduced, responsive
documents].)
The trial court faulted Higginson for not filing a motion for
reconsideration before Judge Wohlfeil. But Higginson had no new or
different evidence on which to base such a motion. (See § 1008, subd. (a)
[authorizing a motion for reconsideration “based upon new or different facts,
circumstances, or law”].) Higginson had already submitted the NHTSA
44
Letter with his motion to support the inference that because NHTSA had
requested documents like those that Higginson requested, then responsive
documents likely existed. But even in the face of that evidence and inference,
Kia persisted in asserting under penalty of perjury that no responsive
documents ever existed. Thus, there was nothing for Judge Wohlfeil to
reconsider.
Nor, similarly, was there any error by Judge Wohlfeil for Higginson to
challenge via writ review, as the trial court also suggested. (See Venture Law
Group v. Superior Court (2004) 118 Cal.App.4th 96, 101 [“writ review of
discovery orders is disfavored” unless a “petitioner seeks extraordinary relief
from a discovery order that may undermine a privilege”].) Indeed, Judge
Pollack at one point acknowledged that “if your response is ‘[documents] don’t
exist,’ a judge ruling on a motion to compel . . . has no choice but to deny the
motion.” If Judge Wohlfeil could not have ruled differently, there was no
error for an appellate court to correct.
To the extent the trial court faulted Higginson for not seeking relief
based on his counsel’s possession of Kia’s Response Letter in connection with
other cases, the court imposed an unreasonable one-sided burden only on
Higginson. On one hand, the trial court speculated that Kia’s false
verification and nonproduction of documents may have resulted from a “left
hand . . . right hand” situation or a day-one paralegal. 20 Yet, the trial court
showed no similar grace for Higginson’s counsel, instead expecting that they
would immediately recognize the importance to this case of documents
produced in other unrelated cases and subject to protective orders that Kia
20 As noted, the record shows that Avalos had been a senior litigation
paralegal at Kia “for more than 16 years.”
45
invoked in this case. 21 Indeed, Higginson’s counsel explained to the trial
court that their firm does not track document productions across different
cases, particularly when those productions are governed by protective orders.
It was only when the firm’s managing partner — with broader experience
and knowledge of the firm’s case load — became involved on the literal eve of
trial that Higginson’s legal team appreciated the significance to this case of
documents obtained in unrelated litigation. By contrast, Kia offered no
evidence explaining why it had produced the Kia Response Letter in other
cases but not this one. The trial court abused its discretion by unreasonably
expecting the litigant to make inferential leaps of logic while the court made
speculative excuses for the party committing inexcusable discovery misuse.
The trial court also unreasonably expected Higginson to pursue
additional discovery from Kia regarding its search terms and document
collection process, even after Kia had refused to meet and confer on the
topics, its paralegal had testified in deposition that Kia used a conjunctive
and disjunctive search protocol, and Kia and its trial counsel repeatedly
assured Higginson and the trial court that no responsive documents existed.
Fourth, the trial court characterized Higginson’s argument for a new
trial as “pure speculation” as to what the wrongfully concealed documents
would have disclosed. But Higginson was forced to speculate only because
Kia never — and still has not — produced responsive documents. Courts
have recognized that a party from whom discovery has been wrongfully
withheld will be unable to prove the contents of the wrongfully withheld
discovery. (See Electronic Funds Solutions, LLC v. Murphy (2005)
21 Notably, when Higginson’s trial counsel said on the first day of trial
that she had all the documents she needed, Kia’s attorney responded by
noting that Higginson’s use of documents governed by a protective order in
another case “was probably a violation of that protective order.”
46
134 Cal.App.4th 1161, 1184 [holding that a party seeking sanctions for
discovery abuse need not show prejudice arising from a responding parties’
destruction of responsive evidence because the responding parties’ “own
actions make that showing difficult, if not impossible”]; Siry Investment, L.P.
v. Farkhondehpour (2020) 45 Cal.App.5th 1098, 1122 [“A prejudice
requirement [for discovery sanctions] would be ‘difficult,’ if not ‘impossible,’
for a propounding party to meet because a showing of prejudice would likely
turn on the significance of the information that the noncompliant party is
refusing to disclose. [Citation.] A prejudice requirement would also empower
intransigent parties to continue their intransigence on the ground that the
documents they were withholding are not that important.”].) 22
Kia denied Higginson a fair trial by withholding all discovery on the
engine defects at issue and by falsely asserting under oath that it had no
responsive documents. Kia continued to withhold the documents at trial.
Because Kia bears the responsibility for creating this evidentiary vacuum, it
cannot escape the consequences simply because its own conduct resulted in
that vacuum. Indeed, to overcome such an evidentiary vacuum, the law
allows us to reasonably infer that Kia withheld these documents because they
would have been damaging to its defense. (See Lopez, supra, 246 Cal.App.4th
22 Although these cases involve prejudice in the context of discovery
sanctions, Higginson cites Gordon v. Nissan Motor Co., Ltd. (2009)
170 Cal.App.4th 1103, 1114 to support the broader proposition that “[a]n
error is reversible per se where it deprives a party ‘of a fair hearing and the
opportunity to show actual prejudice.’ ” (See also In re Christopher L. (2022)
12 Cal.5th 1063, 1073 [“not all errors are amenable to harmless error
analysis”; some “ ‘by their nature, result in a “miscarriage of justice” ’ ”].)
Despite Higginson citing these authorities in his opening brief on appeal, Kia
did not address them in its respondent’s brief. We need not conclude here
whether the trial court’s denial of a new trial was reversible per se because,
as we explain below, Higginson has demonstrated prejudicial error.
47
at p. 605 [“When a party does not produce ordered documents, the court is
entitled to infer the documents would contain evidence damaging to that
party’s case and instruct the jury accordingly.”]; Sherman, supra,
67 Cal.App.4th at p. 1162 [positing that the “sheer number of [withheld]
documents is itself of ponderable significance, and may explain [the
responding party]’s great efforts to conceal this evidence”].)
Fifth, we note that the trial court’s own speculation that the withheld
discovery could not have altered the result is, itself, unsupported. For all we
can tell, the withheld discovery could have disclosed that the vehicle had a
more serious and more irremediable defect than the jury believed it did.
Thus, while the jury may have found — on the limited evidence presented at
trial — that Kia repaired the defect in Higginson’s car, the withheld
documents may have persuaded the jury that Kia’s repairs “provided
temporary relief . . . but never resolved [the] fundamental defect.” (Jensen v.
BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 135.) And because
Kia wrongfully withheld discovery, “the jury never had a chance to evaluate
liability against the backdrop of the big picture.” (Sherman, supra,
67 Cal.App.4th at p. 1155.)
Indeed, because of Kia’s discovery misuse, we cannot determine exactly
what the big picture would have revealed. This is precisely why the trial
court abused its discretion in finding that the withheld discovery could not
have made a difference to the outcome of the case. But by reasonably
inferring that the withheld documents would have supported Higginson’s
case (see Lopez, supra, 246 Cal.App.4th at p. 605; Sherman, supra,
67 Cal.App.4th at p. 1162), we conclude there is at least a reasonable
probability the jury would have reached a different result (or the court would
not have granted nonsuit on the fraud claim) if Higginson had been able to
48
use the documents Kia sent to NHTSA in response to 244 complaints of non-
crash fires that were preceded by engine issues similar to those experienced
by him, such as engine knock, noise, sputtering, or stalling. 23 The mere fact
that Higginson himself had not yet experienced a damaged catalytic
converter or a non-crash fire does not mean his vehicle did not have an
engine defect under investigation by NHTSA. On this point, Higginson’s
expert testified that “[i]f the problems that [Higginson] complained about
during the repair history were left untreated and not repaired, . . . there [is] a
potential that [his car] could catch on fire” — that is, suffer a non-crash fire.
Finally, we note that when this issue arose during trial, Judge Pollack
initially proposed to declare a mistrial, order Kia to pay Higginson’s costs and
attorney fees for the trial up until then, and to set a new trial once Kia
produced documents. Higginson was willing to accept this proposal, even
without payment of his attorney fees. But Kia’s counsel continued to insist it
had done nothing wrong and that Higginson was merely rehashing old
discovery disputes. The trial court’s decision to instead instruct the jury
regarding the discovery issue may have been a reasonable alternative when
the court made its decision. Indeed, in doing so, the trial court implicitly
acknowledged the irregularity of the proceedings to that point. But
subsequent events — namely, the trial court’s exclusion of the NHTSA Letter
and Kia’s Response Letter, and Kia’s definitive confirmation that it used an
improper conjunctive search term (a predicament that could easily have been
avoided had Kia simply accepted Higginson’s invitation to meet and confer
23 Moreover, while the trial court focused on the limited universe of
NHTSA-related documents, the record indicates Higginson’s discovery
requests were broader than NHTSA’s investigatory requests (e.g., by also
requesting Kia’s email communications). Thus, the broader universe of
withheld documents here supports an even broader inference of their
harmfulness to Kia’s case.
49
regarding search terms) — rendered the trial court’s selected remedy
inadequate to protect Higginson’s right to a fair trial.
We therefore conclude that the trial court’s original proposed remedy
was the right one all along. We will implement it now by ordering a new
trial, with directions that the trial court impose monetary sanctions on Kia
for the costs (including attorney fees) of the trial and this appeal. (Sherman,
supra, 67 Cal.App.4th at p. 1164 [reversing defense judgment due to
discovery violation and directing trial court to order monetary sanctions to
compensate plaintiffs for costs and fees of first trial].) In doing so, we are
merely fulfilling Judge Wohlfeil’s prediction during the initial discovery
dispute that, if Kia “got away with one today, . . . eventually the court will
figure that out, and there will be a way of balancing the scales of justice.”
C. The Trial Court Erred by Denying Higginson Leave to
Amend to Attach the Required CLRA Venue Affidavit
The CLRA requires that a plaintiff file, “concurrently with the filing of
the complaint, . . . an affidavit stating facts showing that the action has been
commenced in a” proper venue. (Civ. Code, § 1780, subd. (d).) “If a plaintiff
fails to file the [required] affidavit . . . , the court shall . . . dismiss the action
without prejudice.” (Ibid., italics added.)
As noted, when the trial court sustained Kia’s demurrer to Higginson’s
CLRA cause of action based on his failure to file the required venue affidavit
concurrently with his original complaint, the court did so “without leave to
amend.” Higginson contends the trial court should either have (1) overruled
the demurrer because Higginson filed a venue affidavit before (but not
“concurrently with”) the amended complaint that was the subject of Kia’s
50
demurrer; or (2) sustained the demurrer with leave to amend, as required by
Civil Code section 1780, subdivision (d). 24
Because Higginson failed to file the required affidavit “concurrently
with” his original or amended complaint, the trial court properly sustained
the demurrer on that ground. But the trial court erred by doing so without
granting Higginson the statutorily required leave to amend to overcome the
purely technical pleading defect. On remand, the trial court is directed to
vacate its order sustaining Kia’s demurrer without leave to amend as to the
venue affidavit, and to enter a new order sustaining the demurrer with leave
to amend as to the venue affidavit.
D. Because the Judgment Is Reversed, so Too Is the
Postjudgment Order Awarding Kia Its Prevailing-party
Costs
Higginson argues that we should also reverse the trial court’s order
denying his motion to tax Kia’s prevailing-party costs. We agree. “ ‘An order
awarding costs falls with a reversal of the judgment on which it is based.’ ”
(Allen v. Smith (2002) 94 Cal.App.4th 1270, 1284; see Evans v. Southern
Pacific Transportation Co. (1989) 213 Cal.App.3d 1378, 1388 [“Because the
award of costs to defendant was incident to the judgment, reversal of the
judgment operates to vacate the award.”].)
24 Kia argues Higginson forfeited this challenge by failing to first raise it
in the trial court. Because Higginson’s challenge raises a pure question of
law, we decline Kia’s invitation to deem the issue forfeited. (See Waller v.
Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 24 [an appellate court has the
discretion to address an issue of law based on undisputed facts “even though
it had not been raised in the trial court”].)
51
E. Higginson’s Request for Judicial Notice Is Denied
Higginson requests that we take judicial notice of publicly filed court
papers from three cases: Whitlow v. Kia Motors America, Inc. (Super. Ct.
Sac. County, 2022, No. 34-2019-00253447) (Exhibit A); Valdovinos v. Kia
Motors America, Inc. (Super. Ct. L. A. County, 2022, No. 19STCV07491)
(Exhibits B–J); and In re: Hyundai and Kia Engine Litigation II (C.D. Cal.,
No. 8:18-cv-02223-JLS-JDE) (Exhibits K & L). He argues the documents
show Kia’s positions taken in other similar litigation, its discovery
misconduct, and its knowledge of the existence of responsive documents. He
further maintains that they show Kia cannot be trusted to produce
documents even if ordered to do so on remand. According to Higginson, he
presented some of these documents (Exhibits A, E, F, & K) to the trial court
in connection with his posttrial motions, but the court rejected them because
they were not filed with leave of court. Others (Exhibits B–D, G–J and L)
were not previously presented to the trial court.
We deny the request for several reasons. To begin, the record reflects
that Higginson sought to file this additional evidence after the trial court had
announced its decision on his motions for new trial and JNOV. The trial
court then struck the evidence from the record, stating it did not consider the
unpermitted filings. Ultimately, none of the subject documents became part
of the record in this case. Typically, when reviewing the correctness of a
judgment, we consider only matters that were part of the record at the time
the court entered the judgment. (Haworth v. Superior Court (2010)
50 Cal.4th 372, 379, fn. 2.) “ ‘This rule preserves an orderly system of
[litigation] by preventing litigants from circumventing the normal sequence
of litigation.’ ” (Ibid.) Thus, absent exceptional circumstances, we do not
52
take judicial notice of matters not before the trial court. (Ibid.) We find no
exceptional circumstances here.
Further, while a court may judicially notice the “[r]ecords of . . . any
court of this state” (Evid. Code, § 452, subd. (d)), that extends only to “the
truth of the results reached—in documents such as orders, statements of
decision, and judgments—but [not to] the truth of hearsay statements in
decisions or court files, including pleadings, affidavits, testimony, or
statements of fact.” (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130,
fn. 7; see also South Lake Tahoe Property Owners Group v. City of South Lake
Tahoe (2023) 92 Cal.App.5th 735, 752 [“Courts may not take judicial notice of
allegations in affidavits, declarations and probation reports in court records
because such matters are reasonably subject to dispute and therefore require
formal proof”].) Of the documents Higginson asks us to judicially notice, only
two are court orders (Exhibits C & H), and neither of those documents were
before the trial court when it made its posttrial rulings.
We need not further analyze the matter, because given our disposition,
the documents are not relevant. (See Meridian Financial Services, Inc. v.
Phan (2021) 67 Cal.App.5th 657, 687, fn. 10 [reviewing courts “ ‘may decline
to take judicial notice of matters that are not relevant to dispositive issues on
appeal’ ”].)
53
IV. DISPOSITION
The judgment is reversed.
The trial court is directed to vacate its order denying Higginson’s
motion for new trial and to enter a new order granting a new trial. The trial
court is further directed to order sanctions in favor of Higginson and against
Kia in an amount at least sufficient to compensate Higginson for the costs,
including attorney fees, of the first trial and this appeal. The court may
exercise its discretion to determine whether additional sanctions are
warranted.
The trial court is also directed to vacate its order sustaining without
leave to amend Kia’s demurrer to Higginson’s seventh cause of action for
violation of the CLRA, and to enter a new order sustaining with leave to
amend Kia’s demurrer to that cause of action.
The postjudgment order awarding Kia its prevailing party costs is
vacated incident to reversal of the judgment.
54
RUBIN, J.
I CONCUR:
BUCHANAN, J.
55
O’Rourke, Acting P. J., Dissenting
I respectfully dissent. A trial court’s exercise of discretion on a new
trial motion “is given great deference on appeal.” (City of Los Angeles v.
Decker (1977) 18 Cal.3d 860, 871-872.) Additionally, only “prejudicial error is
the basis for a new trial”; “there is no discretion to grant a new trial for
harmless error.” (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th
1152, 1161; Jenks v. DLA Piper Rudnick Gray Cary US LLP (2015) 243
Cal.App.4th 1, 8 [denial of a “motion for new trial will not be set aside unless
there was an abuse of discretion that resulted in prejudicial error”].) This
standard conforms to article VI, section 13 of the California Constitution:
“No judgment shall be set aside, or new trial granted, in any cause, . . . for
any error as to any matter of procedure, unless, after an examination of the
entire cause, including the evidence, the court shall be of the opinion that the
error complained of has resulted in a miscarriage of justice.” A miscarriage of
justice occurs only if “ ‘it is reasonably probable that a result more favorable
to the appealing party would have been reached in the absence of the error.’ ”
(Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.)
The majority opinion contravenes these standards. Higginson argues
and the majority holds that a new trial is warranted by Kia’s discovery
misconduct and failure to produce evidence, which assertedly constitutes an
“[i]rregularity in the proceedings of the . . . adverse party . . . by which
[Higginson] was prevented from having a fair trial.” (Code Civ. Proc., § 657,
subd. (1).) The trial court rejected Higginson’s position. On this record the
court did not exceed the bounds of reason in denying Higginson a new trial.
The purpose of the sought-after discovery was to obtain documents
reflecting alleged engine defects in Higginson’s model of vehicle. And the
jury made the adverse finding Higginson wanted for Kia’s discovery abuse—
that his vehicle had a defect covered by the warranty. It nevertheless found
Kia did not fail to repair the defect, defeating Higginson’s Song-Beverly
Consumer Warranty Act (Song-Beverly) cause of action. (Oregel v. American
Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101 [elements of Song-
Beverly claim include that “the manufacturer or his representative did not
repair the [substantially impairing] nonconformity after a reasonable number
of repair attempts”]; Robertson v. Fleetwood Travel Trailers of California, Inc.
(2006) 144 Cal.App.4th 785, 798.) In short, because substantial evidence
supports that finding, the court did not abuse its discretion to deny a new
trial for Kia’s asserted discovery misconduct that did not result in a
miscarriage of justice.
I reject the majority’s assertion that reversal is warranted. As a
procedural matter, a new trial motion for irregularity of the proceedings
under Code of Civil Procedure section 657, subdivision (1) is unavailable
here, where the claimed “[i]rregularity” was fully known by Higginson before
the trial concluded. An “irregularity in the proceedings” refers to “matters
which appellant cannot fully present by exceptions taken during the progress
of the trial . . . .” (Gibbons v. Los Angeles Biltmore Hotel Co. (1963) 217
Cal.App.2d 782, 791-792, italics added; see also Montoya v. Barragan (2013)
220 Cal.App.4th 1215, 1229-1230.) The majority says the trial court erred by
expecting Higginson’s counsel to “immediately recognize the importance to
this case of documents produced in other unrelated cases and subject to
protective orders that Kia invoked in this case.” But Higginson’s counsel did
in fact recognize the significance of such documents years before trial. In his
July 2021 opposing summary judgment declaration, Higginson’s attorney
Matthew Pardo sought a continuance to obtain additional discovery,
2
asserting that Kia had failed to produce relevant discovery: documents and
witnesses concerning its internal knowledge of defects with the Gamma
engine and related components such as the catalytic converter. His
declaration is replete with references to missing discovery; he referenced not
only the April 2019 NHTSA letter to Kia concerning “fire propensity and
engine malfunction in 2013 Kia Soul vehicles equipped with Gamma engines”
but a court order from a Los Angeles County case (Maria I Torres v. Kia
Motors America, Inc., Super. Ct., L. A. County, 2022, No. 18STCV00967)
assertedly showing “concrete examples of [Kia’s] fraudulent conduct and
awareness of engine defects in its vehicles.” He pointed out that in April
2019 and February 2020 Kia had issued a safety recall and a product
improvement campaign acknowledging engine defects in the Gamma engine
type in 2013 Kia Souls. Counsel asserted there was good cause to believe Kia
was withholding relevant discovery.
1 The record thus contradicts Higginson’s counsel’s mid-trial assertion to the
trial court that his associates did not track document productions across
different cases. Yet the majority holds the trial court abused its discretion by
unreasonably expecting Higginson to make “inferential leaps of logic . . . .”
(Maj. opn., ante, at p. 47.) On this record, no inferences or leaps were
1 Attorney Pardo also referenced a November 2020 consent order
between NHTSA and Kia in an investigation involving a different
engine (Theta II), in which Kia had made “a voluminous production of
information . . . .” (Underlining omitted.) Counsel said in part: “It is
apparent . . . that documentary evidence exists of [Kia’s] fraudulent
concealment of defects in its engines, including multiple engine types.”
3
necessary: attorney Pardo fully appreciated Kia’s discovery failings months if
not years before the November 2022 trial. 2
Nor is this a situation where Higginson lacked the opportunity to
uncover the withheld information. Notably, Pardo admitted in supporting
Higginson’s new trial motion that as of October 15, 2020, he first became
aware of a public copy of Kia’s June 2019 response to the NHTSA in
connection with another case involving the same year make and model vehicle
as Higginson. And in April 2021, Higginson’s counsel deposed Kia’s “person
most qualified.” Though the deposition notice initially sought information
about the incidence and symptoms of defined engine defects as well as Kia’s
“awareness of these issues in 2013 Kia Soul vehicles over time,” Higginson
ultimately agreed to withdraw technical issues pertaining to engine defects
as well as topics related to paralegal Deborah Avalos’s search for documents,
which presumably would have included the terms actually used by Kia. As
the majority points out, that stipulation was without prejudice to Higginson’s
right to additional discovery, which he apparently did not pursue. The court
acknowledged Higginson’s lack of diligence in this respect during mid-trial
discussions of the issue: “The issue here is every argument that you’re now
making today could have been made three months ago; right? In other words
it’s not like I had thought; and that was that you found out about documents
that were produced in another case that caused you to say, wait a minute.
2 Yet, the majority repeat Higginson’s erroneous claim by stating that
“[o]n the eve of trial (before a different judge), Higginson’s counsel found on
NHTSA’s public website a letter from Kia agreeing to produce records in
response to NHTSA’s [April 2019] investigation . . . .” Notably when
Higginson’s trial attorney raised the discovery issue at the outset of trial, the
trial court asked: “I need to know. Do you have what you need to prove your
case against [Kia]?” Counsel responded, “We have the documents here, yes.”
It was not until the midst of trial that the managing partner walked back
that assertion.
2
They were lying. You knew they were lying as of the time, for the very
reasons you’ve told us; right?” Higginson’s counsel, the managing partner of
Pardo’s law firm, falsely responded that his attorneys “did not look at this
production that they had made to us in this other case . . . .” He then
explained that it was because he was the managing partner that he began
reviewing NHTSA investigations concerning not just Kia Souls but other
vehicles, and he would have brought it up earlier; that his associates “don’t
know that people lie in verified responses,” and relied on Kia’s verification.
The trial court mentioned the lack of diligence in denying Higginson a new
trial, finding Higginson’s law firm “had the very NHTSA correspondence
upon which the motion for new trial and JNOV is fundamentally premised
long before through its discovery in other cases or based upon its own
research on the publicly available NHTSA website.”
Because the claimed irregularity was known to Higginson and his
counsel before the trial concluded, it was a matter that he could “ ‘fully
present by exceptions taken during the progress of the trial.’ ” (Montoya v.
3
Barragan, supra, 220 Cal.App.4th at p. 1230.) 3 And Higginson did so, calling
the issues to the trial court’s attention and leading the jury to find in keeping
with the court’s punitive jury instruction that his vehicle had a defect. The
sought-after discovery was focused on ascertaining defects in Higginson’s
vehicle, and the jury made that finding. The majority’s assertion that the
trial court’s chosen remedy was ineffective is flatly contradicted by the jury’s
verdict.
The jury went on to find Kia repaired the vehicle. That finding, which
as stated above is fatal to Higginson’s Song-Beverly claim, is amply
supported by the trial evidence. The parties presented competing experts on
Higginson’s complaints about his vehicle based on the repair orders and
whether the defects had been repaired. Kia’s expert, who had inspected the
vehicle in July 2021 when it had approximately 139,000 miles on it, testified
that at the time, the catalytic converter was working efficiently and the car
had no active or historic fault codes, check engine lights, or other warning
lights. He had no difficulty steering the vehicle. He found no active or
3 This distinguishes these circumstances from those in Sherman v.
Kinetic Concepts, Inc., supra, 67 Cal.App.4th 1152, on which the majority
relies, including to award attorney fees as monetary sanctions. In Sherman,
it was after trial that the plaintiffs received counsel’s “fluke” call concerning
the defendant’s concealment of documents. (Sherman, at pp. 1159, 1162.)
Higginson’s new trial motion is in substance one based on newly discovered
evidence. But even so classified it would fail because, as the majority
recognize, the evidence must be such that the moving party “could not, with
reasonable diligence, have discovered and produced [it] at the trial.” (Code
Civ. Proc., § 657, subd. (4); see Sherman, at p. 1161.) While Higginson made
efforts early on to purse and compel discovery from Kia, the court would have
properly found he lacked diligence once he eliminated critical inquiries from
the deposition of Kia’s person most knowledgeable, despite knowing
responsive documents had to exist concerning asserted defects in Gamma
engines. Imposition of monetary sanctions under the circumstances of this
case is unjust. (Code Civ. Proc., § 2023.030, subd. (a).)
4
historical codes indicating carbon buildup. While he heard some creaking
noise while steering, he explained it was the car’s strut tower mounts, which
could be solved if Higginson paid to replace them. Higginson’s expert
acknowledged he had not seen any catalytic converter or overheating issues
in Higginson’s car, and agreed the car did not catch on fire. Though
Higginson’s expert described Kia’s cylinder head repair effort as a “band-aid”
that did not diagnose or resolve the cause of carbon buildup, the jury rejected
that testimony. It likewise assessed Higginson’s demeanor when he testified
that he was still experiencing knocking after that repair and rejected the
assertion. The jury’s repair finding, which Higginson does not challenge on
appeal, is supported by Kia’s expert’s testimony. Courts must uphold
findings supported by the evidence “ ‘even though substantial evidence to the
contrary also exists and the [trier of fact] might have reached a different
result had it believed other evidence.’ ” (In re Caden C. (2021) 11 Cal.5th
614, 640.)
The majority says Kia denied Higginson a fair trial by withholding all
discovery on the engine defects at issue. But assuming the unproduced
documents would have shown Higginson’s car had a “nonconformity covered
by the express warranty that substantially impaired the use, value or safety
of the vehicle” (Oregel v. American Isuzu Motors, Inc., supra, 90 Cal.App.4th
at p. 1101), as stated, the jury made that finding adverse to Kia. The
majority also faults the trial court’s reasoning as to counsel’s diligence and
whether any withheld documents could have altered the result. But the court
had it right. The court correctly found Higginson’s attorneys possessed the
NHTSA correspondence Higginson raised as a basis for his new trial and
JNOV motion more than one year before the trial began, and reasoned
counsel should have dealt with it then. The court observed that Higginson’s
5
counsel had various options to address the matter pretrial, but did not do so,
instead bringing an “untimely motion for directed verdict and terminating
sanctions” after trial had commenced. 4 It also found Higginson’s arguments
about Kia’s failure to produce documents amounted to “pure speculation, i.e.,
speculation that the not-produced, responsive documents would have proven
that Kia knew of defects that it was either unwilling or unable to fix . . . and
that such documents would have been material, relevant and admissible.”
The majority itself speculates that the withheld discovery could have
disclosed Higginson’s vehicle had “a more serious and more irremediable
defect than the jury believed it did.” For his part, Higginson argues the jury’s
decision could have changed had it seen “internal documents showing Kia
was aware of a pervasive, unfixable defect in Gamma engines . . . .” But the
documents assertedly withheld by Kia as evidenced by the April 2019
NHTSA investigation pertained to customer reports or allegations of non-
crash fires originating or possibly originating in the engine compartment,
either caused, possibly caused, or not caused by engine failures. As the trial
court observed in denying a new trial, Higginson did not allege his vehicle
4 The trial court explained Higginson had options beyond taking a writ:
“It is important to recognize that irrespective of Kia’s inadequate response
and Judge Wohlfeil’s rulings, plaintiff’s counsel had to have known that Kia’s
search was inadequate since plaintiff’s counsel already had the NHTSA
correspondence with Kia, in spite of it not having been produced to them by
Kia. Plaintiff’s counsel could have taken a writ regarding Judge Wohlfeil’s
decision, propounded an interrogatory specifically requiring Kia to identify
the ‘search terms’ actually used in reaching its conclusion that there were no
responsive documents located, taken the deposition of the Kia employee who
actually conducted the search, called additional witnesses at trial including
the individual who authored Kia’s June 28, 2019 response letter to NHTSA’s
April 12, 2019 letter, etc. Instead, they did nothing during the one-year prior
to trial, and then, after trial had commenced, they bring the untimely motion
for a directed verdict and terminating sanctions.”
6
experienced a noncrash fire. 5 And substantial evidence at trial established
his vehicle did not experience unresolved engine issues leading to such a fire.
The trial evidence was that Higginson’s engine’s knocking and rattling was
the result of carbon build-up that had not reappeared on inspection years
later in 2021. On this record, and particularly given the jury’s finding that
Kia had fixed any defect in Higginson’s vehicle, Higginson cannot establish
prejudice.
I would reach the same conclusion with respect to Higginson’s claim of
fraud. He concedes that to establish that claim, he must be able to prove that
before his 2013 lease or 2016 purchase, Kia “was aware of a defect . . . that it
was either unwilling or unable to fix.” (Santana v. FCA US, LLC, supra, 56
Cal.App.5th at pp. 345-346, italics added.) Very simply, the jury’s verdict—
5 Higginson was required to plead fraud by omission with particularity,
including the “content of the omitted facts.” (Rattagan v. Uber Technologies,
Inc. (2024) 17 Cal.5th 1, 43; see also CACI No. 1901; Wimber v. Scott (2025)
113 Cal.App.5th 349, 354.) In his operative complaint, he alleged that Kia
released his vehicle and others “with a 2.0- or 1.6-[liter] GDI engine, which is
susceptible to sudden stalling while at any speed and/or to burst into flames”;
that Kia knew or should have known about the engine defect, and it failed to
disclose it to consumers. More specifically, Higginson alleged that “2012-
2016 Kia Souls with the 1.6[-liter] engine have catalytic converters that
overheat, resulting in catastrophic engine damage and fires” and that in
February 2019, Kia “issued a recall for 378,967 Soul vehicles from the 2012 to
2016 model years, all of which have 1.6-liter direct injection gasoline engines.
In these engines, the catalytic converter, which reduces pollutants in exhaust
emissions, is susceptible to overheating due to—according to Kia—a
programming error. When the catalytic converter overheats, abnormal
combustion in the engine can result. This can damage the pistons’ connecting
rods, potentially fracturing the engine block and causing an oil leak.
Connecting rod failure, damaged pistons, and a cracked engine block can all
cause sudden and catastrophic engine failure during normal driving, and the
resulting leakage of oil onto hot engine parts can result in engine fires.”
7
supported by substantial evidence that Kia repaired the nonconformity in
Higginson’s vehicle—precludes such proof.
The fact Kia in February 2019 issued a recall does not establish Kia’s
awareness in 2013 or 2016, prior to Higginson’s lease or purchase, of any
alleged defect. Kia’s June 2019 response indicated that in 2016, it began
investigating reports of fires, but that determining their origin and cause was
a challenge due to the nature of fire. As both Kia’s and Higginson’s experts
agreed Higginson’s Kia Soul vehicle had no catalytic converter issues, nor did
the car ever catch on fire, Higginson cannot show a likelihood or reasonable
probability that the missing NHTSA documents would have supported his
fraud theory. I would hold Higginson has not established prejudice even if
the court wrongly denied him a new trial. Higginson concedes that “the facts
underlying [his] CLRA claim are the same as those underlying the fraud
claim . . . .” Because Higginson is unable to demonstrate error or prejudice
with respect to his fraud claim, any error in connection with Higginson’s
CLRA claim, entirely premised on fraud, is harmless.
Thus, even assuming irregularity of the proceedings in the form of
discovery misconduct under Code of Civil Procedure section 657, subdivision
(1) is available, a new trial is justified only if it is reasonably probable that
Higginson would have obtained a more favorable result absent the
misconduct. (Cassim v. Allstate Inc. Co., supra, 33 Cal.4th at p. 800; see Bell
v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108,
1122.) The trial court here properly concluded that Higginson could not
make this showing; I would affirm.
Finally, I fault the majority for not addressing a fundamental issue
raised by Kia in its trial brief, and resolved by the California Supreme Court
in Rodriguez v. FCA US, LLC (2024) 17 Cal.5th 189, namely whether
8
Higginson’s vehicle even qualifies for Song-Beverly protection as a “motor
vehicle sold with a manufacturer’s new car warranty” under Civil Code
section 1793.22. Rodriguez explains that phrase does not include a used car
purchased with an unexpired new car warranty (id. at p. 196); in part
because the “Legislature highlighted vehicles for which a manufacturer’s new
car warranty arises upon sale to a retail buyer” and “[t]hus, the phrase ‘other
motor vehicle sold with a manufacturer’s new car warranty’ is most naturally
understood to mean other vehicles for which such a warranty is issued with
the sale.” (Id. at pp. 199-200; see also p. 196.) Higginson testified he initially
leased the vehicle and purchased it several years later. Those undisputed
facts—that Higginson exercised a lease option to purchase a now-used vehicle
with an unexpired new car warranty—are dispositive of Higginson’s Song-
Beverly claims as a matter of law.
O’ROURKE, Acting P. J.
9
Filed 2/3/26
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
RYAN HIGGINSON, D082322, D083026
Plaintiff and Appellant,
(Super. Ct. No. 37-2020-
v. 00010610-CU-BC-CTL)
KIA MOTORS AMERICA, INC.,
Defendant and Respondent.
THE COURT:
The opinion in this case filed January 09, 2026 was not certified for
publication. It appearing the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c), the requests pursuant to
rule 8.1120(a) for publication are GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for
publication specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words “Not to Be Published in the Official Reports”
appearing on page one of said opinion be deleted and the opinion herein be
published in the Official Reports.
O’ROURKE, Acting P. J.
Copies to: All parties