Judge: Melvin D. Sandvig, Case: 23CHCV00772, Date: 2024-08-20 Tentative Ruling
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Case Number: 23CHCV00772 Hearing Date: August 20, 2024 Dept: F47
Dept. F47
Date: 8/20/24
TRIAL DATE: 3/3/25
Case #23CHCV00772
MOTION TO DEEM
REQUESTS FOR ADMISSIONS ADMITTED
Motion filed on 12/27/23.
MOVING PARTY: Plaintiff Brian Jimenez
RESPONDING PARTY: Defendant BMW
of North America, LLC
NOTICE: ok
RELIEF REQUESTED: An order that
the truth of each matter specified in the Request for Admissions served on
Defendant BMW of North America, LLC (BMW) by Plaintiff on 10/13/23 be deemed
admitted and conclusively established for all purposes in this action. Additionally, Plaintiff requests an order awarding monetary
sanctions against
BMW, and its attorneys of record, Clark Hill LLP in the amount of $2,146.50.
RULING: The motion is granted.
SUMMARY OF FACTS & PROCEDURAL HISTORY
On 3/16/23, Plaintiff Brian Jimenez (Plaintiff) filed
this action against Defendant BMW of North America, LLC (BMW) for Violation of
the Song-Beverly Act – Breach of Express Warranty. On 4/27/23, BMW answered the complaint.
On 10/13/23, Plaintiff served written discovery on BMW
which included Requests for Admissions, Set 1.
(Mukai Decl. ¶3, Ex.A). On
11/13/23, pursuant to BMW’s request, Plaintiff agreed to extend the time to
respond to 11/27/23 provided BMW provide informal document production by
11/20/23. (Mukai Decl. ¶5, Ex.B). On 12/1/23, Plaintiff’s counsel sent a letter
to Defendant’s counsel indicating no responses had been received and demanding
verified responses by 12/8/23. (Mukai
Decl. ¶6, Ex.C). BMW’s counsel failed to
respond and no responses were served before the filing and service of this
motion on 12/27/23. (Mukai Decl.
¶7).
Therefore, on 12/27/23, Plaintiff filed and served the
instant motion seeking an order that the truth of each matter specified in the
Request for Admissions served on BMW by Plaintiff on 10/13/23 be deemed
admitted and conclusively established for all purposes in this action. Additionally,
Plaintiff requests an order awarding monetary sanctions against BMW, and
its attorneys of record, Clark Hill LLP in the amount of $2,146.50. BMW has opposed the motion and Plaintiff has filed a combined reply regarding
this motion and the other discovery motions scheduled for hearing on 8/20/24.
ANALYSIS
CCP 2033.280 provides:
“If a party to whom requests for
admission are directed fails to serve a timely response, the following
rules apply:
(a) The party to whom the requests
for admission are directed waives any objection to the requests,
including one based on privilege or on the protection for work product under
Chapter 4 (commencing with Section 2018.010). The court, on motion, may
relieve that party from this waiver on its determination that both
of the following conditions are satisfied:
(1) The party has subsequently
served a response that is in substantial compliance with Sections 2033.210,
2033.220 and 2033.230.
(2) The party's failure to serve a
timely response was the result of mistake, inadvertence, or excusable neglect.
(b) The requesting party may move
for an order that the genuineness of any documents and the truth of any matters
specified in the requests be deemed admitted, as well as for a monetary
sanction under Chapter 7 (commencing with Section 20230.010).
(c) The court shall make this
order, unless it finds that the party to whom the requests for admission
have been directed has served, before the hearing on the motion, a proposed
response to the requests for admission that is in substantial compliance with
Section 2033.220. It is mandatory that the court impose a monetary sanction
under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or
both, whose failure to serve a timely response to requests for admission
necessitated this motion.” (emphasis added).
There is no dispute that almost five months after this
motion was filed and served and approximately six months after responses were
due, BMW served verified responses to the Requests for Admissions. (See Hom Decl. ¶6, Ex.A; Reply,
p.1:7-10).
Due to the failure to serve timely responses, BMW waived
any objection to the requests. CCP
2033.280(a). To be relieved from such
waiver, BMW was required to make a motion which established that it
subsequently served a response in substantial compliance with CCP 2033.210,
2033.220 and 2033.230 and that the failure to timely serve a response was the
result of mistake, inadvertence, or excusable neglect. CCP 2033.280(a)(1) and (2).
In addition to the clear statutory language requiring the
filing of a motion for relief from the waiver of objections, in this Court’s
order denying BMW’s Ex Parte Application for Relief From Effect of Untimely
Responses to Requests for Admissions, this Court specifically stated that
“Defendant is to reserve a hearing date for and file a noticed motion and may
call the courtroom staff for an earlier date.”
(See 6/24/24 Minute Order).
Rather than comply with the statute and this Court’s order, BMW improperly
seeks relief from the waiver in its opposition to the motion. The Court file shows that BMW has not
reserved or filed a motion for relief from waiver.
Even if BMW could seek relief from the waiver of
objections through its opposition to the motion, BMW has failed to show that
the failure to serve a timely response was the result of mistake, inadvertence
or excusable neglect. The declaration
filed in support of the motion is vague,
ambiguous and fails to address important facts regarding the failure to timely serve
responses. (See Hom Decl. ¶¶3-5).
Without any supporting evidence, BMW claims that its late
service of responses was due to its counsel’s “failure to calendar the
responses due date.” (See
Opposition, p.3:1-2). The foregoing
statement is not made in the declaration filed in support of the opposition and
is refuted by the evidence submitted in support of the motion. The declaration of attorney Brian Hom filed
in support of the opposition does not mention any failure to calendar the
original or extended due date for the responses. (See Hom Decl.). The 11/13/23 email from BMW’s counsel,
attorney Catherine Song, requesting a two-week extension to respond does not
mention any calendaring error. Rather,
attorney Song indicates that they “are working diligently on [their] responses”
to the discovery requests;” “[h]owever, [they] realize [they] will need
additional time to complete [their] responses.”
(See Mukai Decl., Ex.B).
Additionally, the following individuals from BMW’s counsel’s office were
copied on the email and Plaintiff’s response thereto: Brian Wagner, Vanessa
Dao, Ashley Gonzalez, and Minor Vega. Id.
As such, at least five individuals
working in defense counsel’s office at the time had notice that the discovery
responses were now due on 11/27/23.
Additionally, Plaintiff’s counsel’s 12/1/23 meet and
confer letter regarding the missing responses was emailed to attorneys Brian
Wagner and Brian Hom as well as bmw@clarkhill.com. (Mukai Decl., Ex.C). While attorney Bom, not attorney Wagner,
indicates that attorney Wagner was on medical leave at the time, attorney Bom
fails to clearly state why his failure to respond to the letter or discovery is
excusable. (See Hom Decl. ¶¶4-5). As noted above, the declaration is vague and
ambiguous. As such, it is not clear if
attorney Hom is claiming that he directed the letter to the unnamed attorney
handling the matter who is purportedly no longer with the firm who then failed
to respond to the discovery. (Hom Decl.
¶5). Even if that is the case, it is not
clear how that failure constitutes mistake, inadvertence or excusable neglect
when there in no declaration from that unnamed attorney attesting to such.
Since BMW failed to obtain relief from objections, the
responses it served before the hearing on the motion, which include waived
objections, are not in substantial compliance with CCP 2033.220. (See Hom Decl., Ex.A). Therefore, the Court must grant the
motion. CCP 2033.280(b), (c).
Additionally, Plaintiff is entitled to an award of
sanctions against BMW and its attorneys of record, Clark Hill LLP, in the
amount of $2,146.50. CCP 2033.280(b),
(c); (Mukai Decl. ¶¶8-10).
CONCLUSION
The motion is granted.
The truth of each matter specified in the Request for Admissions served
on Defendant BMW of North America, LLC (BMW) by Plaintiff on 10/13/23 are deemed
admitted and conclusively established for all purposes in this action. Additionally, Plaintiff is awarded $2,146.50 in sanctions against
BMW, and its attorneys of record, Clark Hill LLP. Sanctions are payable within 30 days.
Date: 8/20/24
TRIAL DATE: 3/3/25
Case #23CHCV00772
3 MOTIONS TO
COMPEL RESPONSES
Motions filed on 6/4/24.
MOVING PARTY: Plaintiff Brian Jimenez
RESPONDING PARTY: Defendant BMW
of North America, LLC
NOTICE: ok
(2) An order
compelling BMW to serve full and complete verified responses, without
objections, to Plaintiff’s Form Interrogatories, Set 1, served on
10/13/23. Additionally, Plaintiff
requests an award of sanctions in the amount of $1,410.00 against BMW and its
counsel of record, Clark Hill LLP.
(3) An order
compelling BMW to serve full and complete verified responses, without
objections, to Plaintiff’s Form Interrogatories, Set 1, served on
10/13/23. Additionally, Plaintiff
requests an award of sanctions in the amount of $1,410.00 against BMW and its
counsel of record, Clark Hill LLP.
RULING: The motions are denied.
SUMMARY OF FACTS & PROCEDURAL HISTORY
On 3/16/23, Plaintiff Brian Jimenez (Plaintiff) filed
this action against Defendant BMW of North America, LLC (BMW) for Violation of
the Song-Beverly Act – Breach of Express Warranty. On 4/27/23, BMW answered the complaint.
On 10/13/23, Plaintiff served written discovery on BMW
which included Requests for Production of Documents, Set 1, Form
Interrogatories, Set 1, and Special Interrogatories, Set 1. (Thomas Decl. ¶2, Ex.A). On 11/13/23, pursuant to BMW’s request,
Plaintiff agreed to extend the time to respond to 11/27/23 provided BMW provide
informal document production by 11/20/23.
(Thomas Decl. ¶4, Ex.B). On
12/1/23, Plaintiff’s counsel sent a letter to Defendant’s counsel indicating no
responses had been received and demanding verified responses by 12/8/23. (Thomas Decl. ¶5, Ex.C).
Since no responses had been received, on 5/1/24,
Plaintiff’s counsel emailed BMW’s counsel regarding the lack of responses and
in a final attempt to obtain responses to the discovery. (Thomas Decl. ¶6, Ex.D). In response, BMW’s counsel indicated that
they were working on getting responses to Plaintiff. Id.
On 5/16/24, BMW served unverified responses to the discovery with
verifications being served on 5/20/24. (Thomas
Decl. ¶7; Hom Decl. ¶7, Ex.A).
On 6/4/24, Plaintiff filed and served the instant motions
seeking:
(3) An order compelling BMW to serve full and complete
verified responses, without objections, to Plaintiff’s Form Interrogatories,
Set 1, served on 10/13/23. Additionally,
Plaintiff requests an award of sanctions in the amount of $1,410.00 against BMW
and its counsel of record, Clark Hill LLP.
The motions were originally scheduled for hearing on 1/22/25,
2/7/25 and 2/10/25; however, pursuant to
Plaintiff’s ex parte application, on 6/24/24, this Court advanced the
hearings on the motions to 8/20/24. (See
6/24/24 Minute Order). BMW has opposed
the motions and Plaintiff has filed a combined reply to the three motions to
compel and the motion to deem requests for admissions admitted which is
addressed in a separate ruling.
ANALYSIS
When a party on whom document requests and/or
interrogatories are served fails to serve a timely response, that party waives
all objections including those based on attorney-client privilege or attorney
work product. See CCP
2030.290(a); CCP 2031.300(a).
There is no dispute that BMW failed to serve timely
responses to the subject document requests and interrogatories. The issue on these motions is whether after
receiving the untimely responses to the document requests and interrogatories, Plaintiff
properly moved to compel responses without objections under CCP 2030.290 and
CCP 2031.300. Or, whether Plaintiff was required
to move for further responses under CCP 2030.300 and CCP 2031.310. The Court finds that, under the
circumstances, Plaintiff was required to move to compel further responses.
Sinaiko (2007) 148 CA4th 390, relied on by
Plaintiff is distinguishable from the instant case. There, the party on whom the discovery was
served failed to provide a timely response and served responses after a
motion to compel was served. Id. at
395-396. Here, BMW served responses to
the discovery at issue before Plaintiff filed and served the instant
motions. Plaintiff did not file and
serve the motions to compel until 6/4/24, approximately two weeks after BWM
served the verifications for its responses to the document requests and interrogatories
at issue on 5/20/24. The Sinaiko
court held that “[w]hether the trial court should proceed with a motion to
compel responses under CCP 2030.290 when there has been an untimely
interrogatory response is within the sound discretion of the trial court.” Id. at 396.
If BMW had served responses containing objections after
Plaintiff had served and filed these motions to compel initial objection free
responses under CCP 2030.290 and CCP 2031.300, the Court would have proceeded
with the motions and ordered BMW to serve responses without objections. However, having not filed and served such
motions, upon receiving the responses which contained objections which had been
waived, the Court finds that Plaintiff was required to meet and confer with BMW
and if such efforts failed to resolve the discovery dispute, Plaintiff was
required to file and serve motions to compel further responses. See CCP 2030.300(a), (b); CCP
2031.310(a), (b).
Additionally, the argument in the reply regarding why the
late responses are deficient is not based solely on the ground that they include
objections. (See Reply, p.3:3-p.5:2). The foregoing further supports the conclusion
that Plaintiff should have filed and served motions to compel further responses
accompanied by separate statements which included all of the information set
forth in CRC 3.1345(c).
It is unclear why Plaintiff waited until June of 2024 to
file and serve these motions when Plaintiff had filed and served a motion to
deem the requests of admissions (which were served at the same time as the document
requests and interrogatories) admitted in December of 2023. In other words, if Plaintiff had filed and
served the instant motions in December 2023, or any time before BMW served the
responses in late May of 2024, the Court would have granted them and required
BMW to serve responses without objection.
However, once the responses were served, having not filed and served
motions to compel initial objection-free responses, the Court finds Plaintiff
was required to file and serve motions to compel further responses.
CONCLUSION
The motions are denied.