New Trial Warranted Due to Defendant ‘Dodging’ Discovery

Tuesday, January 13, 2026

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Court of Appeal:

New Trial Warranted Due to Defendant ‘Dodging’ Discovery

Opinion Says Car Manufacturer Used Unduly Narrow Reading of ‘Engine Defects’ to Assert That No Responsive Data Existed, Causing ‘Irregularity’ That Impeded Fair Process, Drawing Dissent

By Kimber Cooley, associate editor

Div. One of the Fourth District Court of Appeal has held that a plaintiff asserting violations of California’s “lemon law” among other claims against Kia Motors America Inc. was wrongly denied a new trial after a defense judgment in light of concerns, raised before and during trial, that the automaker had committed discovery abuses by insisting that it had no documents relating to “engine defects” based on an “unduly narrow” reading of the term.

Saying that “it is essentially undisputed that Kia withheld responsive discovery on the alleged engine defects and falsely verified that such documents ‘never existed,’” the court pointed to the plaintiff’s evidence that the company’s document production in similar litigation returned about 1.8 million pages and faulted the company for using an “unreasonable ‘conjunctive’ reading” of the definition that was “[a]t best…negligent.”

Justice David M. Rubin authored Friday’s unpublished opinion, joined in by Justice Martin N. Buchanan, declaring:

“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.”

Rejecting the trial court’s contention that the plaintiff had failed to exercise diligence in uncovering the discovery misuse before trial, based on the fact that the law firm announced, on the first day of trial, that it had found responsive documents provided by the company to its clients in other matters, Rubin said:

“[T]he 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.”

Acting Presiding Justice Terry B. O’Rourke dissented.

Engine Defects

Seeking a new trial was Ryan Higginson, who filed a complaint against Kia in February 2020, alleging that his 2013 Kia Soul, outfitted with a so-called “Gamma” engine, had defects that substantially impaired its use, value, and safety. He had leased the vehicle in 2013 and exercised an option to purchase in 2016.

In the operative complaint, he asserted, among other causes of action, claims under the Song-Beverly Act, codified at Civil Code §1790, for breach of express and implied warranties of merchantability, and fraud.

Citing a May 2019 recall notice indicating that the car had the potential for overheating that might lead to an engine fire, he alleged that the company knew that the vehicle had defects but failed to respond to his August 2019 request that it repurchase his car.

During discovery, Higginson requested that Kia produce documents regarding investigations into the Gamma motor. He obtained an October 2020 court order directing Kia to respond to a narrowed, court-approved definition of “engine defects” after the defendant initially responded with boilerplate objections.

Kia served verified responses attesting that responsive documents “never existed,” and Higginson moved to compel compliance, providing a publicly available April 2019 letter from the National Highway Transportation Safety Administration (“NHTSA”) requesting that Kia produce certain documents regarding alleged engine defects.

San Diego Superior Court Judge Joel Wohlfeil denied the request.

First Day of Trial

On Nov. 14, 2022, the first day of trial, attorneys with the Los Angeles-based Strategic Legal Practices APC informed the court that they would be moving for terminating sanctions based on having discovered related documents provided to the firm in the course of other litigation against the automaker.

After the motion was filed, Kia admitted that its employees failed to find responsive data because the “search terms…were” such that a document would have to have every condition listed as a possible defect to be flagged.

San Diego Superior Court Judge Gregory Pollack declined the request for terminating sanctions and opted to draft a jury instruction that acknowledged that the company had “incorrectly stated” that there were no responsive documents during discovery. He later excluded the NHTSA letter based on evidentiary objections and dismissed the fraud claim, at the defendant’s request for nonsuit, based on the absence of evidence.

Judgment was entered in favor of the defendant after the jury returned a special verdict, in July 2023, finding that the 2013 Soul had a defect covered by warranty but that the company did not fail to make repairs. Pollack denied Higginson’s motion for a new trial based on Code of Civil Procedure §657, which provides for such relief if “[i]rregularity in the proceedings” prevented a party “from having a fair” hearing.

Consistently Dodged

Rubin wrote:

“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.”

Saying that “even after extensive discovery litigation and posttrial motion practice in the trial court, Kia still has not produced responsive documents,” he opined that “[t]his deprived Higginson of essential discovery critical to all aspects of his case.”

Acknowledging that the trial court’s selection of “an issue sanction instead of a terminating sanction was a reasonable choice when the court made it,” he remarked that “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.”

As to the timing of the request for sanctions, he commented:

“[N]either 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.”

Faulting Pollack with placing an undue expectation on Higginson’s counsel that they “would immediately recognize the importance to this case of documents produced in other unrelated cases,” he wrote:

“We will…order[] 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….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.’ ”

O’Rourke’s View

O’Rourke accused the majority of failing to give proper deference to the trial court, saying that “[o]n this record the court did not exceed the bounds of reason in denying Higginson a new trial.” He remarked:

“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.”

Adding that “a new trial motion for irregularity of the proceedings under Code of Civil Procedure section 657…is unavailable here, where the claimed ‘[i]rregularity’ was fully known by Higginson before the trial concluded,” he said:

“In his July 2021 opposing summary judgment declaration, Higginson’s attorney Matthew Pardo…[asserted] that Kia had failed to produce relevant discovery….His declaration is replete with references to missing discovery; he referenced not only the April 2019 NHTSA letter to Kia concerning ‘fire propensity…in…Gamma engines’ but a court order from a Los Angeles County case…assertedly showing ‘concrete examples of [Kia’s] fraudulent conduct and awareness of engine defects in its vehicles.’ ”

Pointing out that “Higginson did not allege his vehicle experienced a noncrash fire” and that “a [2019] recall does not establish Kia’s awareness in 2013 or 2016, prior to Higginson’s lease or purchase, of any alleged defect,” he argued that the plaintiff “is unable to demonstrate error or prejudice.”

The jurist asserted:

“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)…, namely whether Higginson’s vehicle even qualifies for Song-Beverly protection as a ‘motor vehicle sold with a manufacturer’s new car warranty’….Rodriguez explains that phrase does not include a used car purchased with an unexpired new car warranty….[The] undisputed fact[]…that Higginson exercised a lease option to purchase a now-used vehicle with an unexpired new car warranty…[is] dispositive of Higginson’s Song Beverly claims as a matter of law.”

The case is Higginson v. Kia Motors America Inc., D082322, D083026.