California Legal Brief

The Rule of Higginson is that dismissal of a CLRA claim for failure to file a concurrent venue affidavit must be without prejudice (with leave to amend), not with prejudice, under Civil Code section 1780(d), and that unremedied discovery misuse that deprives a party of material evidence required for trial warrants a new trial and monetary sanctions, under circumstances where a party falsely verifies that responsive documents "never existed" and the court's remedial jury instruction becomes ineffective due to evidentiary exclusions.

Appeal from judgment after jury trial and postjudgment orders in Superior Court, San Diego County.

Defendant Appellant was Kia Motors America, Inc. — the automobile manufacturer that served false verified discovery responses claiming responsive documents never existed.

Plaintiff Respondent was Ryan Higginson — the consumer who purchased a 2013 Kia Soul and alleged engine defects under the Song-Beverly Consumer Warranty Act and other claims.

The suit sounded in consumer warranty protection and fraud. No cross-claims applicable.

The key substantive facts leading to the suit were Higginson's 2013 Kia Soul developed engine problems including rattling noise, crunching sounds, failure to start, and was subject to a safety recall (SC176) regarding potential engine fires due to overheating catalytic converters. When Higginson requested repurchase due to defects, Kia did not respond. Higginson sued alleging Song-Beverly Act violations, breach of warranty, fraud, and CLRA violations, claiming Kia knew of engine defects but failed to disclose them.

The procedural result leading to the Appeal: The trial court dismissed the CLRA claim without leave to amend for failure to file a concurrent venue affidavit, denied Higginson's requests for terminating sanctions based on Kia's false discovery verifications claiming no responsive documents existed, granted a defense verdict after jury found defects were repaired, and denied Higginson's new trial motion based on discovery misconduct.

The key question(s) on Appeal: 1. Whether the trial court erred by dismissing the CLRA claim without leave to amend when the statute requires dismissal "without prejudice" 2. Whether the trial court abused its discretion in denying terminating sanctions for discovery misuse 3. Whether the trial court erred in denying a new trial based on discovery misconduct that deprived plaintiff of a fair trial

The Appellate Court held that the CLRA dismissal must be without prejudice per the statute's plain language, the trial court did not abuse discretion in initially choosing jury instructions over terminating sanctions, but erred in denying a new trial where Kia's unremedied discovery misuse (falsely claiming responsive documents "never existed" while using an unreasonable conjunctive search approach) deprived Higginson of essential evidence and the court's remedial jury instruction became ineffective when supporting evidence was excluded.

The case is inapplicable when a party's discovery responses are truthful and complete, when lesser sanctions prove effective in remedying discovery misconduct, when the complaining party fails to pursue available remedies for known discovery violations in a timely manner, or when withheld discovery would not be material to the claims at issue.

The case leaves open the specific parameters for when terminating sanctions become mandatory rather than discretionary, the extent to which a law firm's knowledge in other cases creates duties to investigate potential discovery violations in pending matters, and the precise standards for evaluating whether alternative sanctions have proven inadequate to remedy discovery misconduct.