Judge Holly J. Fujie, Case Number: 24STCV11914, Date: 2024-12-19 Tentative Ruling

This is a lemon-law action. On May 13, 2024, Plaintiff filed a complaint (the “Complaint”) against Defendant and Does 1 through 10 alleging causes of action for: (1) violation of Song-Beverly Act – breach of express warranty; (2) violation of Song-Beverly Act – breach of implied warranty; and (3) violation of the Song-Beverly Act section 1793.2.

On October 2, 2024, Plaintiff filed the instant motion to compel further responses to requests for production of documents, set one (“RFPs”) (the “Motion”). Defendant filed an opposition (the “Opposition”) on December 6, 2024. On December 13, 2024, Plaintiff filed a reply (the “Reply”).

Plaintiff’s Reply was due on December 12, 2024—five court days before the hearing. (Code of Civil Procedure (“CCP”) § 1005) Plaintiff filed the Reply on December 13, 2024. As there is no apparent prejudice to the parties; however, the Court declines to deny the Motion on this ground and will consider the Motion on its merits.

California law requires a responding party to respond to each request for production of documents with either a statement of compliance, a representation that the party lacks the ability to comply, or an objection to the demand. (Code of Civil Procedure (“CCP”) § 2031.210, subd. (a).)

CCP section 2031.310 subdivision (a) states that on receipt of a response to a request for production of documents, the demanding party may move for an order compelling further responses if: (1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general.

Plaintiff seeks to compel further response to RFPs, set one, Nos. 1, 3, 7-9, 11, 13, 14, 15-21, 22-29, 30 and 31. Plaintiff contends that Defendant’s responses consist of boilerplate objections and inadequate responses and that further production is necessary. Defendant argues that it has produced all the responsive documents within its possession.

Upon review of the responses to the RFPs, in response to RFPs Nos 1, 3, 9, 11, and 13-29, Defendant responded with both objections and a statement of compliance. (See, e.g., Plaintiff Separate Statement, p. 4:22-27.) Plaintiff concedes that Defendant has produced responsive documents but argues that “given the privilege-based objections asserted by BMW, Plaintiff is unable to determine which, if any, responsive materials are being withheld on the basis of privilege given the current response as written. (See, e.g. Plaintiff Separate Statement, p. 10:23-26.)

In response to RFP No. 7, Defendant responds: “BMW NA is unable to comply with this request. BMW NA has made a diligent search and reasonable inquiry in an effort to comply with this request and has no documents responsive to this request and is unaware of whether responsive documents exist or have ever existed.” (Plaintiff Separate Statement, p. 13:14-17.)

RFP No. 8 seeks “all DOCUMENTS, including recalls, technical service bulletins, and dealer advisories that were issued for the SUBJECT VEHICLE.” (Plaintiff Separate Statement, p. 14:21-24.)

Defendant objects based on the request being vague, ambiguous, overly broad, not relevant to the subject matter of this litigation and not reasonably calculated to lead to the discovery of admissible evidence. (Plaintiff Separate Statement, p. 14:26-15:3.) Defendant further responds that “if Plaintiff can identify the Recall(s), technical service bulletin(s), and/or dealer advisory(ies) that are being sought, Responding Party will produce those Recall(s), technical service bulletin(s), and/or dealer advisory(ies).” (Plaintiff Separate Statement, p. 15:9-11.)

RFP No. 30 seeks “All DOCUMENTS, in the form of a list or compilation, of other Customer Complaints in YOUR electronically stored information of database(s) that are SUBSTANTIALLY SIMILAR to complaints made by Plaintiff with respect to the SUBJECT VEHICLE in other 2018 BMW X5 vehicles.” (Plaintiff Separate Statement, p. 47:19-22.)

RFP No. 31 seeks “All DOCUMENTS that refer to, reflect, or relate to any Field Service Action issued, or in the process of being issued, in response to complaints experienced by Plaintiff as described in Defendant’s warranty history/summary and within the line items of the repair orders created at Defendant’s authorized repair facility. (Plaintiff Separate Statement, p. 50:9-12.)

Defendant responds with objection-only responses to both RFPs Nos. 30 and 31. (Plaintiff Separate Statement, pp. 48:5-24, 50:14-51:3) Defendant argues that Plaintiff is not entitled to the information sought in these requests because they seek information involving issues and consumers which are separate from the facts and circumstances of this case. (Opp. pp. 3:22-6:6)

The Court finds that no further response is required as to RFP Nos. 1, 3, 7-9, 11, and 13-29, except as described below in relation to a privilege log. As to RFPs Nos. 1, 3, 9, 11, and 13-29, Defendant has produced responsive documents in accordance with the statement of compliance. As to RFP No. 7, Defendant has responded with a Code-compliant representation of inability to comply after a diligent search and reasonable inquiry. (CCP § 2031.230)

As to RFP No. 8, Defendant has stated that it will produce the responsive documents if Plaintiff can identify the documents sought with more particularity. The Court finds that Defendant is able to respond to this request without further clarification from Plaintiff and orders that Defendant respond fully to Request No. 8 by producing the responsive documents.

As to RFP Nos. 30, and 31, Plaintiff seeks all documents relating to customer complaints that are ‘substantially similar’ to the complaints made by Plaintiff and all documents that relate to any Field Service Action issued in response to the same complaints experienced by Plaintiff. Defendant’s objections based on the requests being overbroad, vague, and ambiguous have some merit.

Whether the alleged defects in Plaintiff’s vehicle were present in other vehicles of the same year, make, and model is relevant to establish the Defendant's knowledge of the defect. It also speaks to Defendant's capacity to rectify the defect and whether Defendant conducted reasonable investigations into the possibility of curing the defect.

To the extent that Defendant is withholding additional responsive documents that are subject to the attorney-client or attorney work product privileges, it must produce a detailed privilege log, Defendant has not indicated which specific documents are privileged.¿A privilege log must identify what documents are being withheld and enough information to support a prima facie claim of privilege. (CCP § 2031.240(b)(1-2), [“(b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following: (1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made. (2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.”].)

Accordingly, Defendant must provide a privilege log to identify any documents which are being withheld due to a claimed privilege, and Defendant should provide enough information to demonstrate that the document is protected by attorney-client privilege/work product.

Thus, Plaintiff’s Motion to Compel Further Production is DENIED in part and GRANTED in part as follows:

The Motion is GRANTED as to RFP No. 8. As to RFP Nos. 30 and 31, the Motion is GRANTED but limited to the defects identified in Plaintiff's Complaint and to other 2018 BMW X5 vehicles.

Defendant is also ordered to provide a privilege log identifying any documents that are being withheld based on attorney-client privilege/work product.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court