Judge: Andre De La Cruz, Case: 2022-01257134, Date: 2023-08-14 Tentative Ruling

Motion to Compel Production filed by Tammy M. Sandoval on 4/3/23

Plaintiff Tammy M. Sandoval moves to compel Defendant BMW’s further responses to Plaintiff’s Request for Production of Documents. Specifically, Plaintiff seeks further responses to Request for Production of Documents, Set One, Nos. 1-7, 16-21, 34-40, 43, 51, 60-63.

Plaintiff’s motion is GRANTED for the reasons stated below.

As an initial matter, the opposition was due 08/01/23. Defendant did not file or serve its opposition until a full week later, on 08/08/23, which is only four (4) court days before the hearing on this matter. Based upon the untimeliness of the opposition, the Court disregards the opposition and supporting documents filed under ROA 84, 86 and 88 pursuant to Rules of Court, Rule 3.1300(d). See also Rancho Mirage Country Club Homeowners Ass'n v. Hazelbaker, 2 Cal. App. 5th 252, 262 (2016). 

On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if objection in the response is without merit or too general. Cal. Code Civ. Proc. § 2031.310(a)(3).  The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand and must be accompanied by a meet and confer declaration. Cal. Code Civ. Proc. § 2031.310(b).

Further, notice of the motion to compel further responses must be given within 45 days of the service of the response, or any supplemental response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand. Cal. Code Civ. Proc. § 2030.310(c).  In addition, a motion to compel further responses to document production requests require a separate statement pursuant to Rules of Court, Rule 3.1345. 

Here, Plaintiff has met all procedural requirements for this motion. The motion was timely filed pursuant to written agreement of the parties; Plaintiff sufficiently met and conferred prior to filing the motion; and filed separate statement.

Moreover, Plaintiff has shown good cause for the documents sought. The Complaint alleges during the express warranty period, the vehicle developed various defects involving the electrical system, ignition system, body system and more. See Compl. ¶ 12. Despite numerous opportunities, BMW and its representatives were unable to and/or failed to service or repair the vehicle within a reasonable number of attempts and/or failed to replace or make restitution. Plaintiff also seeks civil penalties for BMW’s willful failure to comply with its statutory obligations.

Pursuant to the Crandall Declaration, Plaintiff’s vehicle had issues with the entire fuel system, along with other complaints and that it had been allegedly repaired under warranty on multiple occasions at BMW of Ontario. In addition, Plaintiff’s counsel has represented that through counsel’s own research—because BMW has failed to provide any documents to date in this case, SIBs and Recall documents published by BMW show that BMW was aware of issues with the fuel system for this year, make and model vehicle. 

Plaintiff propounded Request for Production of Documents, Set One Nos. 1-7, 16-21, 34-40, 43, 51, 60-63 (collectively, the “Requests”), which are broadly divisible into the following three categories:

(1) relating to the warranties and repair history for the Subject Vehicle as well as Plaintiff’s communications with Defendant and/or its agents (i.e., Nos. 1-6, 34);

(2) relating to BMW’s internal investigations and analyses of the Fuel System Defect plaguing Plaintiff’s vehicle and establishing BMW previously knew of such defect but

nevertheless refused to repurchase the vehicle (i.e., Nos. 16-21, 60-63); and

(3) those relating to Defendant’s warranty and vehicle repurchase policies, procedures, and practices (i.e., Nos. 7, 35-40, 43, 51).

Good cause exists for these discovery requests because they are related to issues presented in Plaintiff’s complaint and with regard to issues Plaintiff experienced with the subject vehicle.  

In addition, Defendant BMW did not oppose the instant motion and thus does not contest Plaintiff’s contention that she has good cause for the documents sought. Failure to challenge a contention in a brief results in the concession of that argument. DuPont Merck Pharmaceutical Co. v. Sup. Ct., 78 Cal. App. 4th 562, 566 (2000) (“By failing to argue the contrary, plaintiffs concede this issue”).

Because Plaintiff has shown good cause for the documents sought, the burden now shifts to BMW to justify its objections. By failing to file any opposition, BMW has failed to do so.

Accordingly, the motion is GRANTED.

Defendant BMW is ORDERED to provide further responses, without objection to Plaintiff’s Request for Production of Documents, Set One, Nos. 1-7, 16-21, 34-40, 43, 51, 60-63 within 15 calendar days’ notice of this ruling.

Moving Party to give notice.