Judge: John J. Kralik, Case: 23BBCV00769, Date: 2024-09-26 Tentative Ruling
Case Number: 23BBCV00769 Hearing Date: September 26, 2024 Dept: NCB
North
Central District
|
kaveh kohanof, Plaintiff, v. bmw of north
america, llc,
et al., Defendants. |
Case
No.: 23BBCV00769 Hearing Date: September 26, 2024 [TENTATIVE]
order RE: motion to compel further responses |
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 BurDeptB@LACourt.org or by telephone at (818)
260-8422.
BACKGROUND
A.
Allegations
Plaintiff Kaveh Kohanof (“Plaintiff”)
alleges that on December 8, 2020, Plaintiff entered into a warranty contact
with Defendant BMW of North America, LLC (“BMW”) regarding a 2020 BMW 740 vehicle. Plaintiff alleges that the warranty contract contained various warranties, including but not limited to the bumper-to-bumper
warranty, powertrain warranty, emission warranty, etc. Plaintiff alleges that the defects and
nonconformities to the warranty manifested themselves during the applicable
warranty period, including but not limited to, electrical defects, infotainment
defects, brake system defects, body defects, and others. Plaintiff alleges that BMW failed to promptly
replace the vehicle or make restitution.
Plaintiff
alleges that he delivered the subject vehicle to Defendant Century West BMW,
LLC (“Century”) for substantial repairs on at least one occasion. Plaintiff alleges that Century had a duty to
use ordinary skill in storage, preparation, and repair of the subject vehicle,
but Century breached its duty.
The complaint, filed April 7, 2023,
alleges causes of action for: (1) violation of Civil Code, § 1793.2(D); (2)
violation of Civil Code, § 1793.2(B); (3) violation of Civil Code, §
1793.2(A)(3); (4) breach of the implied warranty of merchantability (Civil
Code, §§ 1791.1, 1794, and 1795.5); (5) negligent repair against Century; and
(6) violation of the Magnuson-Moss Warranty Act.
B.
Motion on Calendar
On August 9,
2024, Plaintiff filed a motion to compel BMW’s further responses to Requests
for Production of Documents, set one (“RPD”).
On August 30,
2024, BMW filed an opposition brief.
On September 6,
2024, Plaintiff filed reply papers.
DISCUSSION
Plaintiff moves to
compel BMW’s further responses to RPD Nos. 1, 2, 3, 7, 17, 20, 22, 24, 30, 35,
38, 40, 41, 47, 54, 56, 57, 66, 74, 76, 77, 78, and 86. Plaintiff argues that the RPDs seek different
categories of documents regarding: (1) the subject vehicle (Nos. 1, 2, 3, and 7);
(2) internal knowledge and investigation discovery regarding the Infotainment
system (Nos. 17, 20, 22, 24, 30, 35, 38, and 40); (3) summary documents and
information (e.g., memoranda, Power Point presentations, etc.) regarding
these documents (Nos. 41 and 47); (4) Policies and Procedures discovery (Nos. 56,
57, and 66); (5) communications with governmental agencies & suppliers
(Nos. 74, 76, 77, and 78); and (6) documents related to the subject vehicle’s
infotainment defects, including internal investigations, emails, and other ESI
(No. 86).
A.
RPD Nos. 3, 7, 54, 57, and 66
In opposition, BMW states that it
will be providing supplemental responses to RPD Nos. 3, 7, 54, 57, and 66
(subject to a protective order for Nos. 7 and 57).
With the reply papers, Plaintiff provides
a copy of BMW’s supplemental responses to the RPD that were served on September
4, 2024. (Stoliker Suppl. Decl., ¶3, Ex.
1.) Plaintiff argues that the responses
to RPD Nos. 3, 7, 54, 57, 57, and 66 remain deficient.
The Court notes that a Stipulation and
Protective Order was signed and filed on September 4, 2024.
The Court briefly addresses the
supplemental responses.
RPD No. 3 seeks all
investigations, reports, and/or studies conducted by BMW and/or on BMW’s behalf
regarding the root cause or failure analysis of any parts that were repaired or
replaced on the subject vehicle and returned by any of BMW’s authorized repair
facilities to BMW/or anyone acting on BMW’s behalf for analysis. RPD No. 54 seeks all documents that
BMW uses or has used since 2020, to evaluate consumer requests for repurchases
or replacements pursuant to the Act. RPD
No. 66 seeks all Lemon Law Documents published by BMW and provided to its
employees, agents, and representatives.
BMW objected generally and stated that after a diligent search and
reasonable inquiry, it did not have any relevant and nonprivileged documents
currently in its possession, custody, or control. By way of guidance, the Court advises the
parties to engage in meet and confer efforts to discuss a further response to
these RPDs. The parties should be guided
by the Court’s analysis regarding RPD No. 17 (discussed below) and CCP §
2031.230, as well as the fact that the parties have executed a protective
order.
RPD No. 7 seeks all
documents, including recalls, TSBs, special service messages, dealer alerts,
reports, Star Reports, campaigns, extended warranties, dealer advisories,
summaries, etc., that were issued for the subject vehicle. RPD No. 57 seeks the Warranty Policy
and Procedure Manuals published by BMW and provided to its authorized repair
facility(s), within the state of California, since 2020 to the present. BMW responded that it would produce documents
subject to a protective order. A
protective order was executed on September 4, 2024, such that further responses
should now be provided.
B.
Remaining RPDs
RPD No. 1
seeks all documents regarding the subject vehicle in BMW’s database. RPD No. 2 seeks all documents
concerning the subject vehicle (warranty records, customer contacts, field
reports, technician line contact, field service reports, and/or dealer
contracts). BMW raised various
objections on the grounds that the RPDs are vague, overbroad, sought irrelevant
documents, are privileged by the attorney-client privilege and work product
doctrine, it was not the party to the underlying agreement regarding the
subject vehicle and did not manufacture/sell/lease/inspect/service/repair the
subject vehicle, the documents are with other third parties, and the documents
sought include trade secrets. BMW stated
without waiving objections that it would produce relevant, non-privileged
documents. Plaintiff identifies these RPDs as requests seeking information about
the subject vehicle.
The documents
sought in RPD Nos. 1 and 2 are relevant as they seek documents related to the
subject vehicle at issue in this action.
If BMW is withholding documents on the basis of privilege and/or
privacy/confidentiality that concern this specific vehicle, BMW should produce
a privilege log. (CCP § 2031.240(c).) As
indicated above, the parties have now entered a protective order, such that confidentiality
concerns can be addressed through the terms of their protective order. The motion is granted as to RPD Nos. 1 and
2.
Plaintiff seeks further responses to RPD Nos. 17, 20, 22, 24, 30, 35,
38, and 40, which he refers to as requests seeking internal knowledge
and investigation discovery.
·
RPD No. 17 seeks all documents concerning any internal analysis
or investigations by BMW regarding Infotainment Defects in BMW vehicles equipped with the Infotainment
system like the subject vehicle. The term “Infotainment
Defects” is defined as “one or more defect(s) within the infotainment system of
the BMW 740 vehicles equipped within the infotainment system as the SUBJECT
VEHICLE that can result in (1) system freezing and/or becoming unresponsive to
commands, (2) malfunction of touch or voice commands, (3) display error
messages, (4) blurry, distorted or unreadable screen, (5) the malfunction
and/or failure of the infotainment system which controls the vehicle’s safety,
navigation, communications, display screen, back-up camera, radio and climate
control; as well as, any other similar concerns identified in the repair
history for the SUBJECT VEHICLE.” (Mot.
at Ex. 4 at p..6.)
·
RPD No. 20 seeks all documents, including ESI and emails, regarding
any internal investigations regarding root cause efforts, problem-solving
efforts, or efforts to identify any actual or potential problems, failures,
malfunctions, conditions, and/or defects, regarding the Infotainment
system in BMW vehicles. (“BMW vehicles”
means all BMW 740 vehicles manufactured/sold by BMW that are equipped with the
Infotainment system.)
·
RPD No. 22
seeks all documents concerning field reports, dealer contacts, warranty claims,
customer complaints, claims, and/or reported failures regarding Infotainment
Defects in BMW vehicles including any documents concerning BMW’s response to
each field report, customer complaint, reported failure, and warranty
claim.
·
RPD No. 24
seeks all documents, including ESI and emails, regarding when any member of BMW’s
Recall committee or task force or their equivalent first learned, became aware
of, or was notified about Infotainment Defects in BMW vehicles, or problems or
potential problems with the Infotainment system in BMW vehicles.
·
RPD No. 30
seeks all Failure Mode and Effects
Analysis reports regarding the Infotainment Defects in BMW vehicles equipped
with the Infotainment system like the subject vehicle.
·
RPD No. 35 seeks all documents, including ESI and emails,
concerning any decision to issue any notices, letters,
campaigns, warranty extensions, service messages, technical service bulletins,
and recalls, concerning the Infotainment
Defects in
BMW vehicles equipped with the Infotainment
system like
the subject vehicle.
·
RPD No. 38
seeks all documents, including ESI and emails, concerning or relating in any
way to any decision to modify the Infotainment,
and/or any of its component parts, in response to Infotainment Defects in BMW vehicles
from 1 year prior to Plaintiff’s purchase of the subject vehicle until the
present.
·
RPD No. 40
seeks all documents, including ESI and emails, concerning any fixes for the
Infotainment Defects in BMW vehicles equipped with the Infotainment system like
the subject vehicle.
BMW
objected in a similar manner as above and responded that after making a
diligent search and reasonable inquiry, it does not have any relevant and non-privileged
documents currently in its possession, custody, or control.
The Court will order a further
response to RPD Nos. 17, 20, 22, 24, 30, 35, 38, and 40, but will limit
the scope of the RPDs. While Plaintiff
seeks documents regarding “BMW vehicles,” the Court will limit the RPDs to
vehicles of the same year, make, and model as the subject 2020 BMW 740 vehicle
that are equipped with the Infotainment system.
Further, objections based on confidentiality and trade secret concerns
may be addressed with the protective order.
In addition, to the extent that BMW is claiming privilege, it should
produce a privilege log. To the extent
that BMW is attempting to invoke CCP § 2031.230, it should provide a fully
code-complaint response—one that is not based on solely “relevant” or
“non-privileged” documents as unilaterally limited by BMW. Section 2031.230 states: “A representation of inability to
comply with the particular demand for inspection, copying, testing, or sampling shall
affirm that a diligent search and a reasonable inquiry has been made in an
effort to comply with that demand. This statement shall also specify whether
the inability to comply is because the particular item or category has never
existed, has been destroyed, has been lost, misplaced, or stolen, or has never
been, or is no longer, in the possession, custody, or control of the responding
party. The statement shall set forth the name and address of any natural person
or organization known or believed by that party to have possession, custody, or
control of that item or category of item.”
The motion is granted as to RPD Nos. 17, 20,
22, 24, 30, 35, 38, and 40.
RPD No. 41 seeks all documents that were prepared by any of BMW’s engineers or
suppliers concerning the Infotainment defects in BMW vehicles equipped with the
Infotainment system like the subject vehicle.
RPD No. 47 seeks all documents that identify all part numbers,
labor codes, and any other warranty regarding the Infotainment system like the
subject vehicle. Plaintiff refers to
these RPDs as summary documents
and information (e.g., memoranda, Power Point presentations, etc.)
regarding these documents. BMW objected
in a similar manner as above, and responded that after making a diligent search
and reasonable inquiry, it does not have any relevant and non-privileged
documents currently in its possession, custody, or control. For the
same reasons discussed above, and subject to the same limitations, the Court
grants the motion as to RPD Nos. 41 and 47.
RPD No. 56 seeks all
training manuals and/or other documents relating to the training given to BMW’s
employees, agents, or representatives since 2022, in connection with handling
consumer lemon law repurchase requests. BMW objected in a similar manner as above
and responded that after making a diligent search and reasonable inquiry, it
does not have any relevant and non-privileged documents currently in its
possession, custody, or control.
The RPD seeks policies and procedures,
which are not limited to the subject vehicle or to any geographical location.
They seek any and all documents BMW has used to evaluate any consumer request
for repurchase or replacement, all document regarding issues of refunds, all
training manuals for handling consumer lemon law repurchase requests, all lemon
law documents published by BMW, etc. The
documents sought are overbroad and are not limited to the subject vehicle, to
any time frame, or geographical location.
Thus, the Court will modify and grant this request to the limited extent
that any document referred to in the course of responding to the lemon law
repurchase in this particular case pertaining to the subject vehicle only should
be produced—unless there is a claim of privilege. In that case, the document(s) should be listed
in a privilege log. To this limited
extent, the motion is granted as to RPD No. 56.
RPD No. 74 seeks all documents
regarding any communications between BMW and any government agency or entity
regarding Infotainment defects in BMW vehicles.
RPD No. 76 seeks all Early Warning Reports BMW submitted to NHTSA
concerning BMW vehicles. RPD No. 77
seeks all Transportation Recall Enhancement, Accountability, and Documentation
(TREAD) reports BMW submitted concerning BMW vehicles. RPD No. 78 seeks all NHTSA complaints
in BMW’s possession, custody, or control that relate to transmission defects in
BMW vehicles. Plaintiff refers to these
RPDs as discovery involving communications with governmental agencies and
suppliers. BMW objected to RPD Nos.
76-78 in a similar manner as above and responded that after making a diligent
search and reasonable inquiry, it does not have any relevant and non-privileged
documents currently in its possession, custody, or control. (BMW’s separate statement did not address
No. 74.)
The same issues are present in these RPDs
as discussed above. The documents sought
are not limited in scope and potentially seek documents regarding any BMW
vehicle that has the Infotainment system, regardless of whether the
defect/issue complained of is the same as the issue in Plaintiff’s subject
vehicle. Thus, the overbreadth
objections are sustained, except that any documents that refer specifically to
this subject vehicle should be produced. The motion is granted as to RPD Nos.
74, 76, 77, and 78 to this limited extent.
RPD No. 86 seeks all
documents concerning performance standards relating to the Infotainment system
in BMW vehicles. BMW objected to the RPD
on similar grounds as above. For the
same reasons discussed above, the Court grants the motion as to RPD No. 86 but
will limit the RPD to documents related to BMW vehicles of the same year, make,
and model as the subject vehicle at issue in this action from the year 2020 to
the present.
C.
Sanctions
Plaintiff seeks $3,160 in sanctions against
BMW only (= 8 hours x $395/hour). The Court
declines to award sanctions given that the Court has narrowed the scope of specific
requests as noted above.
CONCLUSION AND ORDER
Plaintiff Kaveh
Kohanof’s motion to compel Defendant BMW of North America LLC’s further
response to RPDs is granted, subject to the limitations as stated more fully in
the Court’s written order. Defendant is
ordered to provide further response within 20 days of notice of this
order.
Plaintiffs request
for sanctions is denied.
Plaintiff
shall
provide notice of this order.
DATED:
September 26, 2024 ___________________________
F.M.
TAVELMAN, Judge
Superior
Court of California
County
of Los Angeles