Judge: Frank M. Tavelman, Case: 24NNCV00416, Date: 2024-10-04 Tentative Ruling

Case Number: 24NNCV00416    Hearing Date: October 4, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO COMPEL FURTHER RESPONSE

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Lilit Khachatryan (Plaintiff) brings this action against BMW of North America, LLC (BMW). Plaintiff alleges that BMW sold her a defective 2022 BMW iX xDrive50 and thereafter refused to repurchase the vehicle in violation of the Song-Beverly Act.

Before the Court are the following motions, all brought by Plaintiff:

1.      Motion to Compel Further Responses to Plaintiff’s Form Interrogatories (FROG)

2.      Motion to Compel Further Responses to Plaintiff’s Request for Admissions (RFA)

3.      Motion to Compel Further Responses to Plaintiff’s Special Interrogatories (SPROG)

4.      Motion to Compel Further Responses to Plaintiff’s Request for Production of Documents (RFPD)

BMW has only opposed the third and fourth motions.

ANALYSIS: 

I.                    LEGAL STANDARD 

Motion to Compel Further Responses to Interrogatories

On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that the responses contain: (1) answers that are evasive or incomplete, (2)¿an unwarranted or insufficiently specific exercise of an option to produce documents in lieu of a substantive response, or (3) unmerited or overly generalized objections.  (C.C.P. §¿2030.300(a).) The responding party has the burden of justifying the objections thereto. (Coy v. Sup.Ct. (1962) 58 Cal.2d 210, 220-21.)

Motion to Compel Further Responses to RFPD

A motion to compel further responses to RFPD may be brought based on: (1) incomplete statements of compliance; (2) inadequate, evasive, or incomplete claims of inability to comply; or (3) unmerited or overly generalized objections.  (C.C.P. § 2031.310(c).) 

A motion to compel further production must set forth specific facts showing good cause justifying the discovery sought by the inspection demand. (See C.C.P. § 2031.310(b)(1).) In Digital Music News LLC v Superior Court (2014) 226 Cal.App.4th 216 at 224, the Court defined “good cause” as a showing that there “a disputed fact that is of consequence in the action and the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.”  

If the moving party has shown good cause for the requests for production, the burden is on the objecting party to justify the objections. (Kirkland v. Sup.Ct (2002) 95 Cal. App.4th 92, 98.) 

Motion to Compel Further Responses on RFA

On receipt of a response to requests for admission, 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 or (2) an objection to a particular request is without merit or too general. (C.C.P. § 2033.290(a).)

Failure to Oppose a Motion

Pursuant to C.R.C. Rule 8.54 a failure to oppose a motion may be deemed a consent to the granting of the motion as being meritorious.

II.                 MERITS

Meet and Confer

Upon review, the Court finds the meet and confer efforts sufficient. (Mukai Decl. ¶¶ 8-9, Exhs. C-D.) Plaintiff states that her counsel sent a meet and confer letter to BMW’s counsel and followed up thereafter. (Id.) Plaintiff states that neither correspondence elicited a response from BMW’s counsel. (Id.) BMW’s oppositions are silent on these communications.

Form Interrogatories

Plaintiff seeks further responses to FROG Nos. 15.1 and 17.1. BMW does not oppose this motion. Pursuant to C.R.C. Rule 8.54 a failure to oppose a motion may be deemed a consent to the granting of the motion as being meritorious.

FROG No. 15.1 asks BMW to identify all facts, witness, and documents which support each of BMW’s material allegations and affirmative defenses. BMW responded with a variety of objections and identified the following documents as responsive to the interrogatory:

1.      A copy of the underlying agreement regarding the subject vehicle 

2.      A copy of the written limited warranty that was provided for the subject vehicle when it was originally distributed 

3.      A copy of the Warranty Vehicle Inquiry (WVI) for the subject vehicle

4.      A copy of the vehicle repair records obtained from any authorized repair facilities concerning service to the subject vehicle

5.      A copy of the call records containing communications with Plaintiff relating to the subject vehicle

(Mukai Decl. Exh. B.)

Plaintiff argues that this response is insufficient because it is incomplete. Plaintiff argues BMW’s response does not associate any of the above items with an individual material claim or affirmative defense. Plaintiff argues that BMW has asserted 34 affirmative defenses in its Answer but has identified none of the requested information as concerns those 34 affirmative defenses. The Court agrees that BMW’s answer is unresponsive to the question posed.

FROG No. 17.1 asks BMW to identify all facts, witness, and documents in association with all denials/qualified admissions rendered in response to Plaintiff’s RFA. BMW’s response was that their RFA responses are self-evident and that they have “reasonably and clearly qualify its responses as required by the California Code of Civil Procedure” (Muka Decl. Exh. B.) The Court finds this answer to be evasive. If BMW maintains the reasonable belief that their responses to the relevant RFA are sufficient to answer this question, logic dictates that BMW could simply copy those responses in replying to FROG 17.1.  Plaintiff should not have to guess what BMW believes is the answer.  BMW’s refusal to answer the interrogatory on grounds that the answer is located elsewhere is unsatisfactory.

Accordingly, the motion to compel further responses to FROG Nos. 15.1 and 17.1 is GRANTED.

Request for Admissions

Plaintiff moves to compel BMW’s further responses to RFA Nos. 3-5, 9, 12, 13, 18-20, 21-22 and 33-35. BMW does not oppose this motion.

BMW’s response to each of the above RFA is the following statement of objections:

Responding Party objects on grounds that it is vague, ambiguous and unintelligible. Responding Party objects on grounds that it is over broad and unduly burdensome. Responding Party objects to the extent it seeks information that is not relevant and not reasonably calculated to lead to the discovery of admissible evidence. Responding Party objects to the extent it seeks information that is protected by the attorney-client privilege and/or attorney work product doctrine. Responding Party objects on grounds that it was not a party to the underlying agreement regarding the subject vehicle and it did not manufacture, sell, lease, inspect, service or repair the subject vehicle. Responding Party objects to the extent it seeks information in the possession, custody and/or control of third parties. Responding Party objects on grounds that it assumes facts that have not been established. Responding Party objects on grounds this is argumentative. Responding Party objects on grounds that it is an incomplete hypothetical

(Mukai Decl. Exh. B.)

Plaintiff argues that each of these objections have been interposed without consideration of the RFA to which BMW is responding. Plaintiff further argues that each of these objections are without merit. By virtue of failing to oppose the motion, BMW has provided no argument to the contrary. As such, BMW have failed to carry their burden of justifying their objections.

Accordingly, the motion to compel further responses to RFA Nos. 3-5, 9, 12, 13, 18-20, 21-22 and 33-35 is GRANTED.

Special Interrogatories

Plaintiff seeks to compel further responses to SROG Nos. 1-3, 8-12, 14-17, 18-27, 29-31, 40-41 and 43-44. BMW opposes on grounds that they have provided code compliant responses to each of these requests.

As concerns SPROG Nos. 1-3, 8-12, and 14-17, BMW responded identically to each with the following statement:

Subject to and without waiving the foregoing, and to the extent it understands the interrogatory, Responding Party responds as follows: Pursuant to California Code of Civil Procedure Section 2030.230, Responding Party elects to refer to documents rather than create a compilation, abstract, audit, or summary. Responding Party refers to the following documents which may have been obtained by third parties.

(Mukai Decl. Exh. B.)

This statement is followed by the identification of various documents such as “A copy of the Warranty Vehicle Inquiry (WVI) for the subject vehicle.” (SPROG No. 2.)

Plaintiff argues that such a response is insufficient. Plaintiff represents that BMW’s is improperly gesturing toward its entire document production with specifying which documents are response to each of these SPROG. Plaintiff states that BMW’s document production in this case to this point consists of 164 pages of documents presented with no index, table of contents, or identifying information. (Mukai Decl. ¶ 7.)

The Court agrees that BMW’s general gesturing toward this mass of documents is insufficiently responsive to Plaintiff’s SPROG. C.C.P. § 2030.230 requires that a statement referring the propounding party to responsive documents “…shall be in sufficient detail to permit the propounding party to locate and to identify, as readily as the responding party can, the documents from which the answer may be ascertained.” Here, BMW does identify various documents in its SPROG responses. However, none of these documents are accompanied by information which would allow Plaintiff to locate and identify those documents among the mass of 164 pages BMW produced.

Accordingly, the motion to compel further responses to SPROG Nos. 1-3, 8-12, and 14-17 is GRANTED.

As concerns SPROG Nos. 18-27, 29-31, 40-41 and 43-44, BMW responded to each with the following objections:

Responding Party objects on grounds that it is vague, ambiguous, and unintelligible. Responding Party objects on grounds that it is over broad and unduly burdensome. Responding Party objects to the extent it seeks information that is not relevant and not reasonably calculated to lead to the discovery of admissible evidence. Responding Party objects to the extent it seeks information that is protected by the attorney-client privilege and/or attorney work product doctrine. Responding Party objects on grounds that it seeks information that is confidential, proprietary and trade secret. The information is proprietary to and owned by Responding Party. If the information was disclosed, it would infringe on Responding Party’s proprietary rights. Responding Party objects on grounds that it calls for a legal conclusion. Responding Party objects on grounds that it assumes facts that have not been established. Responding Party objects on grounds that it is an incomplete hypothetical. 

(Mukai Decl. Exh. B.)

In defending this response, BMW focuses solely on their objections of relevance. BMW argues that because these RFPD solicit information pertaining to vehicles other than the Subject Vehicle, any information produced would be irrelevant to the underlying action. The Court finds this argument unpersuasive.

In the discovery context, information is relevant “if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement. [citations omitted] Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence.” (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1611-1612.) It must be noted that discovery rules are to be applied liberally “and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Cruz v. Superior Court (2004) 121 Cal.App.4th 646, 653-654.) 

In fact, evidence regarding other vehicles with similar defects as Plaintiff’s could potentially be admissible at trial in a lemon law action. (Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 154; see also Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 971.) While Donlen does not specifically address the scope of discovery requests, it does concern the admissibility of evidence of defects in similar vehicles. It follows that if evidence of a type is admissible then it must also be discoverable.

Although it is not supported by declaration, the Court is sensitive to BMW’s objection on grounds of proprietary/trade secret protection. Protective orders are routinely used in Song-Beverly cases to protect the release of such information in discovery. As such, any confidential, commercially sensitive, proprietary, and trade secret documents may be produced subject to a protective order that allows such documents to be designated confidential.

Accordingly, the motion to compel further responses to SPROG Nos. 18-27, 29-31, 40-41 and 43-44 is GRANTED subject to the parties entry of a stipulated protective order. 

Request for Production of Documents

Plaintiff moves to compel further responses to RFPD Nos. 1, 2, 4-15-17, 19-41, and 44-46. 

As a preliminary matter, the Court finds Plaintiff has demonstrated good cause for production of these documents. Each of the requests concern either the subject vehicle, BMW’s repurchase policy/procedure, or information related to vehicles of the same year, make, and model as the Subject Vehicle. As explained above, the Court finds this information is relevant to the underlying dispute in this case.

As concerns RFPD Nos. 1-2, 4-15, 17, 19-32, 37-41 and 44, the Court finds further production is warranted by virtue of BMW’s incomplete statement of compliance. BMW responded to each of these RFPD with the following statement:

Responding Party will produce all relevant and non-privileged documents currently in its possession, custody and/or control which may have been obtained from third parties

(Muklai Decl. Exh. B.)

Plaintiff argues that BMW’s agreement to produce only documents which “may have been obtained by a third party” constitutes an incomplete statement of compliance. The Court agrees. These RFPD request BMW to produce all documents within their possession, not just those that are obtained from third parties. BMW provides no explanation as to why this statement was included in their responses. Regardless of BMW’s subsequent production, the fact remains that they have only stated they will produce documents obtained from third parties. While this may be an overemphasis on semantics, ensuring discovery compliance often requires more scrupulous analysis of the language employed.

Accordingly, the motion to compel further responses to RFPD Nos. 1-2, 4-15, 17, 19-32, 37-41 and 44 is GRANTED.

This leaves RFPD Nos. 16, 32-36, and 45-46.

As concerns RFPD No 16, BMW appears to concede that its initial response was insufficient. To that end, BMW’s counsel represents that BMW intends to serve a supplemental response to RFD No. 16 as follows:

Subject to a protective order, BMW NA will comply in part and will produce a copy of its 2021 Warranty Policies and Procedures Manual.

The Court finds this supplemental response would be insufficient. RFPD No. 16 asks for “warranty claims policy and procedure manual(s) from 2022 to the present.” (Mukai Decl. Exh. A.) The production of a warranty manual from 2021 would therefore be unresponsive to the request.

Accordingly, the motion to compel further response to RFPD No. 16 is GRANTED.

As concerns RFPD Nos. 32-36 and 45-46, BMW maintains that its objections on grounds or irrelevance are with merit. As previously explained, information relating to vehicles of the same year, make, and model are relevant and discoverable. Echoing its ruling on the SPROG, the Court finds BMW’s objection on the grounds of proprietary information to be salient but not a total barrier to production.

The Court notes that RFDP Nos. 45 and 46 requests customer complaints related to a 2013 BMW 3 Series Vehicle. The Court does not find good cause exists to compel this information because this case does not concern such a vehicle. In contrast to requests which seek information for vehicles of the same year, make, and model, these requests are entirely irrelevant. 

Accordingly, the motion to compel further responses to RFPD Nos. 32-36 is GRANTED. Any confidential, commercially sensitive, proprietary, and trade secret documents may be produced subject to a protective order that allows such documents to be designated confidential. The motion to compel further responses to RFPD Nos. 45-46 is DENIED.

Sanctions

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a 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. (C.C.P. § 2031.310(h).)

Here the Court finds that BMW opposed the instant motion without substantial justification. The fact that BMW conceded the necessity for supplemental responses belies the fact that this motion was necessary. Further, BMW’s complete failure to engage in any meet and confer efforts means Plaintiff had no opportunity to narrow the scope of its motion.

As such, the Court awards Defendant sanctions against BMW’s counsel in the amount of $1,740. This amount reflects five hours of attorney work in bringing and arguing these motions at a rate of $300 per hour, plus the $60 filing fee for each motion. (Mukai Decl. ¶ 11.) The Court finds this rate reasonable based upon the complexity of the matter and the amount of work commensurate with bringing motions of this type.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Lilit Khachatryan’s Motions to Compel Further Responses came on regularly for hearing on October 4, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTIONS TO COMPEL FURTHER RESPONSES TO FROG NOS. 15.1 AND 17.1; RFA NOS.  3-5, 9, 12, 13, 18-20, 21-22 AND 33-35; SPROG NOS. 1-3, 8-12, 14-17, 18-27, 29-31, 40-41 AND 43-44; RFPD NOS. 1, 2, 4-15-17, AND 19-44 ARE GRANTED.

THE MOTION TO COMPEL FURTHER RESPONSES TO RFPD NOS. 45 AND 46 IS DENIED.

FURTHER PRODUCTION TO OCCUR WITHIN 30 DAYS.

SANCTIONS ARE GRANTED AS AGAINST BMW’S COUNSEL IN THE AMOUNT OF $1,740. SANCTIONS TO BE PAID WITHIN 30 DAYS.

IT IS SO ORDERED. 

DATE:  October 4, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles