Judge: John J. Kralik, Case: 23BBCV00219, Date: 2023-09-08 Tentative Ruling
Case Number: 23BBCV00219 Hearing Date: February 16, 2024 Dept: NCB
North Central District
ANTHONY MEDINA, Plaintiff, v. BMW OF NORTH AMERICA, LLC, Defendant. |
Case No.: 23BBCV00219 Hearing Date: February 16, 2024 [TENTATIVE] ORDER RE: MOTIONS TO COMPEL FURTHER RESPONSES |
BACKGROUND
A. Allegations
Plaintiff Anthony Medina (“Plaintiff”) commenced this action against Defendant BMW of North America, LLC (“BMWNA”) concerning a 2018 BMW 540i. BMWNA is alleged to be the manufacturer and distributer of the vehicle. Plaintiff alleges he purchased the vehicle and received an express written warranty in which BMWNA undertook to preserve or maintain the utility or performance of the vehicle or to provide compensation. Plaintiff alleges that the vehicle contained or developed defects during the warranty period, including various engine and coolant system defects. Plaintiff alleges he delivered the vehicle to BMWNA’s authorized repair facility, but they were unable and/or failed to service/repair the vehicle within a reasonable number of attempts and failed to issue a refund or replacement.
The complaint, filed January 30, 2023, alleges causes of action for: (1) Song-Beverly Act; (2) Magnuson-Moss Act; and (3) breach of express warranty.
B. Motions on Calendar
On December 6, 2023, Plaintiff filed 3 motions to compel BMWNA’s further responses to: (1) Form Interrogatories (“FROG”); (2) Special Interrogatories (“SROG”); and (3) Requests for Production of Documents (“RPD”).
On February 8, 2024, BMWNA filed untimely opposition briefs.
On February 8, 2024, Plaintiff filed reply briefs.
DISCUSSION
A. FROG
Plaintiff moves to compel BMWNA’s further responses to FROG Nos. 1.1, 12.1, 15.1, and 17.1.
· FROG 1.1 asks BMWNA to state the name, address, telephone number, and relationship to it of each person who prepared or assisted in the preparation of the responses to the FROGs.
· FROG No. 12.1 asks BMWNA to state the name, address, and telephone number of each individual who (a) witnessed the incident/events occurring immediately before or after the incident; (b) who made any statement at the scene of the incident; (c) who heard any statement made about the incident at the scene; and (d) who BMWNA/anyone acting on its behalf claims has knowledge of the incident.
· FROG No. 15.1 asks BMWNA to identify each denial of a material allegation and each special or affirmative defense in the pleadings and for each: (a) state all facts upon which it bases the denial or special or affirmative defense; (b) state the contact information of all persons who have knowledge of those facts; and (c) identify all documents and other tangible things that support its denial or special or affirmative defense, and state the contact information of the person who has each document.
· FROG No. 17.1 asks if BMWNA’s response to each RFA served with the FROGs is an unqualified admission and, if not, for each response that is not an unqualified admission: (a) state the RFA number; (b) state all facts upon which the response is based; (c) state the contact information of all persons with knowledge of those facts; and (d) identify all documents that support the response and contact information of persons who has each document/thing.
BMWNA objected to the FROGs on the ground that it filed a motion to compel arbitration with a hearing date of September 8, 2023 and asked the Court for a stay in the action.
Plaintiff seeks further responses arguing that the objections are based on a stay as a result of BMWNA’s prior filing of motions to compel arbitration. Plaintiff argues that this Court never entered a stay of the action and ultimately denied BMWNA’s motions to compel arbitration.
By way of background, on June 26, 2023, BMWNA filed a motion to compel Plaintiff to arbitrate this action, which the Court denied on September 8, 2023. On April 27, 2023, BMWNA filed a motion to compel arbitration, which the Court denied on September 29, 2023. As such, the action has not been compelled to arbitration and there is no stay in the action.
In opposition, BMWNA argues that it has already agreed to supplement its responses, but that Plaintiff rushed to file this motion. Thus, it argues that Plaintiff should not be awarded sanctions.
In light of BMWNA’s representations in its opposition papers that it will supplement its responses, the Court denies the motion to compel further responses. If responses are not provided or Plaintiff finds the responses non-code compliant or deficient, then such issues may be addressed in a separate motion.
Plaintiff seeks $2,800 against BMWNA and its counsel of record for filing this motion (= 2 hours for the motion, plus 2 anticipated hours to reply and attend the hearing, at $700/hour). BMWNA argues that Plaintiff should not be awarded sanctions as it has agreed to provide supplemental responses. The Court declines to award sanctions on this relatively simple and uncomplicated motion to compel further responses.
BMWNA did not request sanctions in connection with this motion. Nevertheless, the motion did not need to be filed. The Court will not award any fees or costs for this motion even if Plaintiff prevails at trial.
B. SROG
Plaintiff moves to compel BMWNA’s further responses to SROG Nos. 7-17, 19-21, and 26-27.
· SROG No. 7 asks that if BMWNA contends that it or its authorized repair facilities were not given a reasonable number of attempts to repair the subject vehicle, then to state all facts that support its contention.
· SROG No. 8 asks BMWNA to identify all persons employed by it with knowledge of the facts that support its contention that it or its authorized repair facilities were not given a reasonable number of attempts to repair the subject vehicle.
· SROG No. 9 asks BMWNA to identify each document which evidences, relates, or refers to any fact that supports it contention that it or its authorized repair facilities were not given a reasonable number of attempts to repair the subject vehicle.
· SROG No. 10 asks that if BMWNA contends that Plaintiff’s concerns with the subject vehicle were not eligible for coverage under its express warranty on any occasion when the subject vehicle was delivered to its authorized repair facilities for repair, then to state all facts that support its contentions. SROG No. 11 asks BMWNA to identify all persons with knowledge of the facts that supports its contentions in No. 10. SROG No. 12 asks BMWNA to identify each document which evidences, refers, or relates to any fact that supports its contentions regarding No. 10.
· SROG No. 13 asks that if BMWNA denied warranty coverage for any repairs that Plaintiff requested be made to the subject vehicle.
· SROG No. 14 asks that if BMWNA denied warranty coverage for any repairs that Plaintiff requested to be made to the subject vehicle, then to state all reasons it denied such requests. SROG No. 15 asks BMWNA to identify each document which evidences, refers, or relates to any fact that supports its contentions regarding No. 14. SROG No. 16 asks BMWNA to identify each document which evidences, refers, or relates to any fact that supports its contentions regarding No. 14.
· SROG No. 17 asks that if BMWNA contends that any delays in the repair of the subject vehicle was caused by conditions beyond its control, then to state all facts that support its contention.
· SROG No. 19 asks that if BMWNA contends that the subject vehicle does not qualify for repurchase under the provisions of the Act, then to state all facts that support its contention. SROG No. 20 asks that if BMWNA contends that the subject vehicle does not qualify for repurchase under the provisions of the Act, then to identify all documents that support its contentions. SROG No. 21 asks that if BMWNA contends that the subject vehicle does not qualify for repurchase under the provisions of the Act, then to identify all persons with knowledge of the facts that support its contentions.
· SROG No. 26 asks that if BMWNA contends that Plaintiff is responsible for any nonconformity in the subject vehicle that is set forth in the repair orders for the subject vehicle, then to state all facts that support its contention. SROG No. 26 asks that if BMWNA contends that Plaintiff is responsible for any nonconformity in the subject vehicle that is set forth in the repair orders for the subject vehicle, then to identify all documents that support its contentions.
Similar to its responses to the FROG, BMWNA objected to the SROGs on the ground that it filed a motion to compel arbitration with a hearing date of September 8, 2023 and asked the Court for a stay in the action. However, as discussed above, the Court denied the motions to compel arbitration and any concurrent request for a stay in the action.
In opposition, BMWNA argues that it has already agreed to supplement its responses. Thus, it argues that Plaintiff should not be awarded sanctions.
In light of BMWNA’s representations in its opposition papers that it will supplement its responses, the Court denies the motion to compel further responses. If responses are not provided or Plaintiff finds the responses non-code compliant or deficient, then such issues may be addressed in a separate motion.
Plaintiff seeks $2,800 against BMWNA and its counsel of record for filing this motion (= 2 hours for the motion, plus 2 anticipated hours to reply and attend the hearing, at $700/hour). The request for sanctions is denied. Likewise, no fees will be awarded to Plaintiff for this motion, even if Plaintiff prevails at trial.
No sanctions were requested by BMWNA and no sanctions will be awarded.
C. RPD
Plaintiff moves to compel BMWNA’s further responses to RPD Nos. 3, 5, 6, 10, 12, 14, 18, 19, 20, 22, 24, 30, 31, and 33.
· RPD No. 3 asks BMWNA to produce all documents in its possession relating or referring to Plaintiff and/or the subject vehicle.
· RPD No. 5 asks for all documents which evidence, describe, refer, or relate to repairs or services performed on the subject vehicle at any time and by any person.
· RPD No. 6 asks for all documents evidencing, describing, or relating to any contact with any person, other than BMWNA’s attorney, and relating or referring in any way to Plaintiff or the subject vehicle including any communications to or from its Center Assistance Managers.
· RPD No. 10 asks for all documents which evidence, describe, refer, or relate to BMWNA’s rules, policies, or procedures since 2018 concerning the issuance of refunds to buyers or providing replacement vehicles to buyers in the State of California under the Act.
· RPD No. 12 asks for all documents which evidence, describe, refer, or relate to procedures used by BMWNA for the handling of complaints by consumers regarding vehicles manufactured or distributed by BMWNA.
· RPD No. 14 asks for all documents which evidence, describe, refer, or relate to policies, procedures, and/or instructions since 2018 that its employees or representatives should follow in responding to customer complaints regarding failure to repair vehicles under its warranty.
· RPD No. 18 asks for all documents which evidence, describe, refer, or relate to any claim for warranty reimbursements to BMWNA concerning the subject vehicle from the date the subject vehicle left the factory to the present.
· RPD No. 19 asks for all photographs or videos of the subject vehicle.
· RPD No. 20 asks for all documents which evidence, describe, refer, or relate to written or recorded statements from any person concerning the subject vehicle or Plaintiff’s complaints.
· RPD No. 22 asks for all documents which evidence, describe, refer, or relate to TSBs which have been issued for vehicles of the same year, make, and model as the subject vehicle.
· RPD No. 24 asks for each written warranty provided by BMWNA for the subject vehicle.
· RPD No. 30 asks for its warranty policy and procedure manual as well as its warranty claims policy and procedure manual(s) and any/all documents related thereto from 2019 to the present.
· RPD No. 31 asks for all shop, service, or repair manuals, instructions, or similar documents from 2018 to the present applicable to the subject vehicle.
· RPD No. 33 asks for the complete Communications Compendium from 2018 to the present.
Similar to its responses to the FROG and SROG, BMWNA objected to the RPDs on the ground that it filed a motion to compel arbitration with a hearing date of September 8, 2023 and asked the Court for a stay in the action. However, as discussed above, the Court denied the motions to compel arbitration and any concurrent request for a stay in the action.
In opposition, BMWNA argues that it has already agreed to supplement its responses and that Plaintiff’s request for sanctions should be denied.
In light of BMWNA’s representations in its opposition papers that it will supplement its responses, the Court denies the motion to compel further responses. If responses are not provided or Plaintiff finds the responses non-code compliant or deficient, then such issues may be addressed in a separate motion.
Plaintiff seeks $4,200 against BMWNA and its counsel of record for filing this motion (= 4 hours for the motion, plus 2 anticipated hours to reply and attend the hearing, at $700/hour). The request for sanctions is denied. Moreover, no fees will be awarded for these motions even if Plaintiff prevails at trial.
No sanctions were requested by BMWNA and no sanctions will be awarded.
CONCLUSION AND ORDER
Plaintiff Anthony Medina’s motion to compel Defendant BMW of North America, LLC’s further responses to Form Interrogatories is denied.
Plaintiff Anthony Medina’s motion to compel Defendant BMW of North America, LLC’s further responses to Special Interrogatories is denied.
Plaintiff Anthony Medina’s motion to compel Defendant BMW of North America, LLC’s further responses to Requests for Production of Documents is denied.
No sanctions shall be awarded on this motion.