Judge: David B. Gelfound, Case: 23CHCV01711, Date: 2024-05-09 Tentative Ruling

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Case Number: 23CHCV01711    Hearing Date: May 9, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO COMPEL FURTHER ANSWERS TO FIRST SET OF REQUESTS FOR ADMISSIONS AND REQUEST FOR SANCTIONS

Motion filed: 11/13/23

MOVING PARTY: Plaintiff Sorush Sharif (“Plaintiff”)

RESPONDING PARTY: None

NOTICE: OK 

RELIEF REQUESTED: An order from this Court to compel Defendant Santa Monica BMW (“SM BMW”) to produce supplemental responses to Plaintiff’s Requests for Admissions (“RFA”), Nos. 7, 11, 13, 17, 22-23, and 27, to compel SM BMW to verify its responses to RFA, Nos. 1-6, 12, 14-21, and 24-33, and to impose monetary sanctions against SM BMW and its attorney of record, jointly and severally, in the amount of $3,901.51.

TENTATIVE RULING: The motion is GRANTED. The Request for Monetary Sanctions is GRANTED IN PART.

BACKGROUND

Plaintiff filed this Song-Beverly Consumer Warranty Act lawsuit over alleged defects in his 2021 BMW 430i Coupe (the “Subject Vehicle”), which was manufactured by Defendant BMW of North America, LLC (“BMW NA”). Plaintiff leased the Vehicle in new condition on March 6, 2021, from Crevier BMW Santa Ana, under the manufacturer’s express warranty.  Defendant SM BMW is an authorized service and repair facility of BMW NA.

On June 12, 2023, Plaintiff initiated the action against Defendants BMW NA, SM BMW, (collectively, “Defendants”), and Does 1 through 50. The Complaint alleges four causes of action: (1) Violation of Song-Beverly Act – Breach of Express Warranty, (2) Violation of Song-Beverly Act – Breach of Implied Warranty; (3) Violation of the Song-Beverly Act Section 1793.2(b), and (4) Violation of Song-Beverly Act – Section 1796.5. Subsequently, Defendants filed their Answer to the Complaint on September 20, 2023.

On November 13, 2023, Plaintiff filed the instant Motion to Compel Further Answers to RFA, Set One.

No opposing papers have been received by the Court.

ANALYSIS

“On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply: ¶ (1) An answer to a particular request is evasive or incomplete. ¶ (2) An objection to a particular request is without merit or too general.” (Code Civ. Proc., § 2033.290, subd. (a).)

A.    Procedural Requirements

1.      Timeliness

A motion to compel further responses to requests for admission must be brought within 45 days of service of the verified response, supplemental verified response, or on a date to which the propounding and responding parties have agreed to in writing; otherwise, the propounding party waives the right to compel further responses. (Code Civ. Proc., § 2033.290, subd. (c); but see Golf & Tennis Pro Shop, Inc. v. Superior Court (2022) 84 Cal.App.5th 127, 134-136 [suggesting that the 45-day deadline does not apply to (i.e., it does not begin to run with service of) objections-only responses; it only applies to responses that are required to be verified].)

“[T]he time within which to make a motion to compel production of documents is mandatory and jurisdictional just as it is for motions to compel further answers to interrogatories.”  (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) The 45-day deadline “is ‘jurisdictional’ in the sense that it renders the court without authority to rule on motions to compel other than to deny them.”  (Ibid.)

Here, Plaintiff attests that SM BMW’s unverified responses were served by email on October 17, 2023. (Saeedian Decl., ¶ 8.) Plaintiff correctly notes that unverified responses are tantamount to no response until verifications are provided. (See Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636 (Appleton).) Thus, the 45-day limit does not apply to the service of unverified responses.

            Therefore, the Court finds the Motion is filed timely.

2.      Meet and Confer

“A motion [to compel further responses to requests for admission] shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2033.290, subd. (b)(1).)

Here, Plaintiff has satisfied the meet and confer requirement. (Saeedian Decl., ¶ 10.)

3.      Separate Statement

The California Rules of Court rule 3.1345 (b)(5) explicitly states that “A separate statement is not required under the following circumstances: (1) When no response has been provided to the request for discovery[.]”

Here, Plaintiff has satisfied the requirement by concurrently filing a separate statement with the Motion.

B.     Motion to Compel Further Responses

1)      Insufficient Responses

Plaintiff asserts that Defendant’s responses to RFP Nos. 7, 11, 13, 17, 22-23, and 27, Set One, are insufficient. (Mot., at p. 6.)

REQUEST FOR ADMISSION NO. 7: Admit that BMW OF NORTH AMERICA, LLC uses a pre-determined rate schedule to pay YOU for repair work.

REQUEST FOR ADMISSION NO. 11: Admit that YOU received payments from BMW OF NORTH AMERICA, LLC for the warranty repair work performed by YOU on SUBJECT VEHICLE.

REQUEST FOR ADMISSION NO. 13: Admit that BMW OF NORTH AMERICA, LLC uses a pre-determined time schedule for each type of repair that determines how much time BMW OF NORTH AMERICA, LLC will pay YOU for any particular repair.

REQUEST FOR ADMISSION NO. 17: Admit that BMW OF NORTH AMERICA, LLC provides BMW OF NORTH AMERICA, LLC factory training to YOUR dealership employees.

REQUEST FOR ADMISSION NO. 22: Admit that BMW OF NORTH AMERICA, LLC did not request that YOU perform any review of whether Plaintiff’s vehicle qualifies for repurchase or replacement under the Song-Beverly Act.

REQUEST FOR ADMISSION NO. 23: Admit that YOU did not perform any review of whether the SUBJECT VEHICLE qualifies for repurchase or replacement under the Song-Beverly Act.

REQUEST FOR ADMISSION NO. 27: Admit that YOU did not charge Plaintiff for any of the repair attempts performed by YOU on the SUBJECT VEHICLE.

Defendant asserts boilerplate objections to the above RFA Nos. Specifically, the objections state, “SANTA MONICA BMW objects to this request based on Evidence Code section 352, as whether or not Plaintiff’s vehicle is somehow substantially impaired due to a warrantable defect has nothing to do with any warranty reimbursement payments made by BMW NA. SANTA MONICA BMW further objects to this request as overly broad, unduly burdensome, oppressive, seeks information and/or documents that are not relevant to any party’s claims or defenses and not reasonably calculated to lead to the discovery of admissible evidence, may seek information and/or documents that are protected by the attorney-client and/or work product doctrine and/or the expert consultant privilege, may seek information and/or documents that may be confidential and protected as proprietary, trade secret, and/or commercially sensitive without prior entry of an appropriate protective order, and seeks information and/or documents that are not relevant and not proportional to the needs of the case, considering the importance of the issues at stake in this action, the amount in controversy, and the parties’ relative access to the

information and/or documents. SANTA MONICA BMW objects to this request to the extent that

it requires the preparation of a compilation, abstract, audit or summary. ¶ SANTA MONICA BMW objects to the extent the request exceeds the permissible scope of discovery and the limitations that are set forth in the California Code of Civil Procedure, and/or any other applicable court rules. SANTA MONICA BMW’s discovery and investigation are ongoing.” (See generally, Pl.’s Separate Statement.)

The Court finds SM BMW’s objections to be meritless and the information sought by the RFAs to be relevant to the issue of repair and repurchase of the Subject Vehicle. Furthermore, the Court determines that SM BWM’s responses are not compliant with the requirements of Code of Civil Procedure section 2033.220, subdivision (b), which provides, “[e]ach answer shall: ¶ (1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party. ¶ (2) Deny so much of the matter involved in the request as is untrue. ¶ (3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.”

Consequently, the Court GRANTS the Motion to Compel Further Responses to Requests for Admissions, Nos. 7, 11, 13, 17, 22-23, and 27, Set One.

2)      Unverified Responses

“Unsworn responses are tantamount to no responses at all.” (Appleton, supra, 206 Cal.App.3d at p. 636, citing Zorro Inv. Co. v. Great Pacific Securities Corp. (1977) 69 Cal.App.3d 907, 914.)

Here, SM BMW served its unverified responses on October 17, 2023, including the remaining RFA Nos. 1-6, 12, 14-21, and 24-33. (Saeedian Decl., ¶ 7.) Following the precedent set in Appleton, these responses are deemed ineffective until they are verified. Consequently, the Court finds that Defendant should be compelled to provide verified, complete, and code-compliant responses to Set One of Plaintiff’s Request for Admissions.

Accordingly, the Court GRANTS Motion to Compel Further Response to Requests for Admissions, Nos. 1-6, 12, 14-16, 18-21, and 24-33, Set One.

C.    Monetary Sanctions

Additionally, Plaintiff seeks monetary sanctions against SM BMW, in the amount of $3,901.51, under the authority of Code of Civil Procedure sections 2023.030, and 2033.290, subdivision (d).

Code of Civil Procedure section 2033.290, subdivision (d) provides, “The court shall impose a monetary sanction ... against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (Cal. Rules of Court, rule 3.1348(a).)

As the Court has granted the Motion, it determines that the mandatory sanctions under Code of Civil Procedure section 2033.290 subdivision (d), are applicable. Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the instant Motion is $1,121.51, calculated at $695.00 per hour for 1.5 hours, in addition to $79.01 filing fee.

CONCLUSION

The unopposed Motion to Compel Further Responses to Requests for Admissions, Set One, is GRANTED.

Santa Monica BMW is ordered to produce verified supplemental responses to Requests for Admissions, Nos. Nos. 7, 11, 13, 17, 22-23, and 27, Set One, within 20 days.

Santa Monica BMW is further ordered to produce verifications to its responses to Requests for Admissions, Nos. 1-6, 12, 14-16, 18-21, and 24-33, Set One, within 20 days.

Plaintiff’s Request for Monetary Sanctions is GRANTED IN PART.

Santa Monica BMW and its attorney(s) of record are ordered to jointly and severally pay $1,121.51 to Plaintiff.

Moving party is ordered to give notice.