Judge: Melvin D. Sandvig, Case: 23CHCV00242, Date: 2024-11-13 Tentative Ruling
Case Number: 23CHCV00242 Hearing Date: November 13, 2024 Dept: F47
Dept. F47
Date: 11/13/24
TRIAL DATE: 4/14/25
Case #23CHCV00242
MOTION TO
COMPEL FURTHER RESPONSES
(Requests for
Production of Documents, Set 1)
Motion filed on 8/2/24.
MOVING PARTY: Plaintiff Alma Romero
RESPONDING PARTY: Defendant BMW of North America, LLC
NOTICE: ok
RULING: The motion is granted, in part, and
denied, in part, as set forth below.
SUMMARY OF FACTS & PROCEDURAL HISTORY
This action arises out of Plaintiff Alma Romero’s
(Plaintiff) purchase of a 2019 BMW 330i which was manufactured and/or
distributed and warranted by Defendant BMW of North America, LLC
(Defendant). On 1/27/23, Plaintiff filed
this action against Defendant for Violation of the Song-Beverly Act – Breach of
Express Warranty. On 3/8/23, Defendant
answered the complaint.
On 12/28/23, Plaintiff served Defendant with Requests for
Production of Documents, Set 1. (Thomas
Decl., Ex.A). On 1/28/24, Defendant
served unverified responses. (Thomas
Decl., Ex.B). In response to Requests 1,
2, 4 and 7-12, Defendant agreed to produce certain documents identified by
title or description. Id. In response to Requests 16-18, 30, 33-36,
37-39 and 45-46, Defendant asserted only objections. Id.
However, Defendant did not produce any documents. (Thomas Decl.)
On 3/8/24, Plaintiff’s counsel began meet and confer
efforts to resolve this discovery dispute informally. (Thomas Decl., Ex.C-F). On 6/19/24, Defendant served verified
supplemental responses to the discovery requests. (Id., Ex.G). The parties then began meet and confer
efforts regarding the supplemental responses and agreed to an extension of time
to bring a motion to compel further responses.
(Id., Ex.H).
On 8/2/24, Plaintiff filed and served the instant motion
seeking an order compelling Defendant to
provide further responses to Plaintiff’s Request for Production of Documents,
Set 1. Additionally, Plaintiff requests
sanctions in the amount of $3,480.00 against Defendant and its attorneys of
record, Clark Hill, LLP. Defendant has
opposed the motion and Plaintiff has filed a reply to the opposition.
ANALYSIS
CRC 3.1110(a) provides that “[a] notice of motion must
state in the opening paragraph the nature of the order being sought and the
grounds for issuance of the order.”
(emphasis added).
Plaintiff has failed to provide clear notice of the
relief requested. The motion is titled
as only a motion to compel further responses to document requests, not as a
motion to compel further responses and compliance with responses. Additionally, the opening paragraph of the
notice of motion indicates that Plaintiff is seeking “an order compelling
further responses to Plaintiff’s First Set of Requests for Production of
Documents and monetary sanctions in the amount of $3,480.00 against Defendant
BMW of North America, LLC, and its attorneys of record, Clark Hill, LLP.” (See Notice of Motion, p.1:4-7). The second paragraph of the notice indicates
that the “motion is made on the ground that Defendant has failed and refused to
provide Code-compliant discovery responses pursuant to Code of Civil Procedure
§ 2031.310 and failed to produce the documents it agreed to produce in
violation of § 2031.320.” (Id.,
p.1:8-10).
Even if the relief requested and grounds had been
included in the opening paragraph of the notice, Plaintiff has improperly
combined a motion to compel further responses to certain of the requests (Requests
17, 18, 30, 37-39, 46) with a motion to compel compliance with responses as to
other requests (Requests 1, 2, 4, 7-12, 16, 33-36, 45). Further, confusing matters, the separate
statement filed in support of the motion includes some of the requests for
which Plaintiff seemingly only seeks compliance, but not other requests for which
Plaintiff also only seeks compliance – i.e., the Separate Statement does not
include Requests 1, 2, 4 and 7-12 for which Plaintiff seeks production in
compliance with Defendant’s responses; however it does include Requests 16, 33-36
and 45 where Plaintiff argues that Defendant has not produced the documents as agreed.
The motion also does not account for documents produced
before it was filed. (See Wagner
Decl. ¶8; Reply, p.1:11, fn.1). In the
reply, Plaintiff argues that Defendant’s document production (some of which
occurred before the motion was filed) does not comply with CCP
2031.280(a). However, this contention is
not supported by any evidence (i.e., a declaration attesting to how the
documents were produced or a copy of the production). Additionally, Defendant has not had an
opportunity to respond to such argument.
Based on the foregoing, the Court will only consider the
request to compel further responses. If
Plaintiff is dissatisfied with the production Defendant has provided in relation
to its responses, she may make a properly noticed and supported motion to
compel compliance pursuant to CCP 2031.320.
However, if Defendant’s production does not comply with CCP 2031.280(a)
as claimed and/or Defendant has not produced documents as agreed, the Court
suggests that Defendant re-produce the documents in compliance and/or produce
promised documents to avoid further law and motion practice.
With regard to Requests 16, 33-36 and 45, Plaintiff
argues in the moving papers and separate statement, that Defendant failed to
produce documents as promised, not that the supplemental responses are
deficient. As such, the request to
compel further responses to these requests is denied. The Court notes that, in the reply, Plaintiff
argues that Defendant’s supplemental responses to Requests 33-36 are deficient. (See Reply, p.4:12-27). However, since this argument was not raised
in the moving papers, it was not considered.
(See Motion, p.3:12-13, p.4:25-p.5:11; Separate Statement,
p.6:15-p.9:12).
With regard to 17, 30 and 37-39, Defendant’s responses
that it has no relevant and non-privileged documents in its possession, custody
or control are deficient. The responses
imply that Defendant has documents responsive to the requests which Defendant
is withholding on the basis of some unidentified privilege. The responses do not comply with CCP
2031.240(c) which provides:
“(1) If an
objection is based on a claim of privilege or a claim that the information
sought is protected work product, the response shall provide sufficient factual
information for other parties to evaluate the merits of that claim, including,
if necessary, a privilege log.
(2) It is
the intent of the Legislature to codify the concept of a privilege log as that
term is used in California case law. Nothing in this subdivision shall be
construed to constitute a substantive change in case law.”
Request 18 seeks the “Franchise Agreement” between
Defendant and the dealership that sold Plaintiff the Vehicle on the date of the
sale of the subject Vehicle. Defendant
has failed to adequately justify its objections as is its burden. See Fairmont Insurance Co.
(2000) 22 C4th 245, 255; Coy (1962) 58 C2d 210, 220-221. To the extent the document contains protected
information, such information will be adequately protected by the protective
order the Court has entered pursuant to
the parties’ stipulation.
Request 46 seeks documents “evidencing warranty repairs
to 2019 BMW Other vehicles regarding any of the components that YOU or YOUR
authorized repair facilities performed repairs on under warranty.” Defendant’s objections that the request is
overly broad and seeks documents which are not relevant to this case have merit. While Plaintiff claims that during meet and
confer efforts, the request was limited to 2019 BMW 330i vehicles, the request
is still overly broad and seeks irrelevant information because it is not
limited to the same or similar repairs and/or claimed defects in the subject
Vehicle.
The Court finds that imposing sanctions against Defendant
and/or its counsel would be unjust under the circumstances. Additionally, because the motion was not
entirely successful, Defendant and its counsel, at least partially, acted with
substantial justification. See
CCP 2031.310(h).
CONCLUSION
The request to compel further responses to Document
Requests 17, 18, 30, 37, 38 and 39 is granted.
Further responses are due within 30 days.
The motion is denied as to Document Requests 1, 2, 4, 7,
8, 9, 10, 11, 12, 16, 33, 34, 35, 36, 45 and 46. As noted above, the denial is without
prejudice to Plaintiff bringing a properly noticed and supported motion to
compel compliance.
Plaintiff’s request for sanctions is denied.