Judge Ronald F. Frank, Case 21TRCV00073 2023-01-27 Tentative Ruling

Judge: Ronald F. Frank, Case: 21TRCV00073, Date: 2023-01-27 Tentative Ruling

Case Number: 21TRCV00073 Hearing Date: January 27, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: January 27, 2023¿

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CASE NUMBER: 21TRCV00073

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CASE NAME: Iman Peykar v. BMW of North America, LLC, et al

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MOVING PARTY: Plaintiff, Iman Peykar

RESPONDING PARTY: Defendant, BMW of North America, LLC

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TRIAL DATE: None Set

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MOTION:¿ (1) Motion for Terminating Sanctions

¿ Tentative Rulings: (1) DENY, but the Court issues an order regarding a possible motion or motions to compel further responses to the subject discovery

Discussion

On October 26, 2022, this Court issued a minute order requiring Defendant to provide substantive, verified responses to all four sets of discovery that are the subject of these motions, and to produce responsive documents identified in those responses, no later than November 28, 2022.

Plaintiff asserts that Defendant did not comply with the Court’s order. Instead, Plaintiff asserts that on November 28, 2022, Mr. Douglas re-served the same exact discovery responses that were served to Plaintiff’s counsel on June 10, 2022. (Ahoubim Decl., ¶ 13, Exhibit I.) Plaintiff further notes that on November 29, 2022, Mr. Douglas sent an email with Defendant’s supposedly substantive responses to Plaintiff’s Discovery Requests, and verifications. Plaintiff argues that Defendant and its counsel’s conduct is willful and that such dilatory conduct has substantially prejudiced Plaintiff in that Plaintiff cannot properly prepare its case for trial.

In opposition, Defendant argues that it has complied with the Court’s October 26, 2022 order, except that the verification was a day late. (Chun Decl., ¶ 9.) Defendants argues that it has provided the names of witnesses, identified the applicable recalls/bulletins, identified all applicable warranties, identified and produced relevant documents just as the October 26, 2022 order ordered. (Chun Decl., ¶ 9.) Defendant claims that its attached Exhibits with underlined Responses clearly show that there are no additional information or documents to be produced. (Id., at ¶¶ 4 and 6.) The Court has reviewed an 8 inch thick binder that BMW lodged regarding its over 1,000 pages of documents produced, although the Court notes most of those pages relate to the certified lemon arbitration program that Plaintiff did not use pre-litigation, and copies of the warranty booklet and operator’s manual. Defendant asserts that its counsel even requested that Plaintiff’s counsel identify any Responses that he believed were deficient, but was only met with repetitive response stating that the Responses were not substantive. (Id., at ¶¶ 7 and 8.) As such, Defendant contends that there was no failure to comply, and if there was, there was no willful refusal to comply.

In reply, Plaintiff argues that Defendant and its counsel state that “because Defendant’s previously served Responses had identified the documents, provided relevant information and referred Plaintiff to the produced documents for the identity of Defendant’s witnesses, Defendant believed that the responses were substantive.” ([Chun Decl., at ¶ 5]) On the same day, Plaintiff’s counsel replied and stated its position that Defendant only provided the exact same Responses. (Id.) Defendant provided the Amended Responses the very next day. (Id.)” (See Opposition at 3:5-10.) Plaintiff also asserts that Defendant’s November 29, 2022 Discovery responses are not verified because Michael W. McCaffrey’s verifications are dated August 22, 2022 noting that that this was two months prior to the Court’s October 26, 2022 order.

CONCLUSION¿

The Court is disturbed and disappointed with the direction discovery and motion practice in this single-vehicle “Lemon Law” case has gone. ¿Had BMW timely made a motion for protective order to limit the number of discovery requests, it likely would have reduced the number of Documents demands from the 96 categories originally requested. Had BMW timely provided a verification for the allegedly tardy original responses, the discovery motions would not have been required. Had BMW provided more factually detailed substantive responses after the Court entered an Order (as a condition of granting the motion for relief from deemed admissions), the motion for terminating sanctions would not have been required. On the Plaintiff side, normally a motion to compel further responses complete with a separate statement listing the disputed requests and responses would precede a motion for terminating sanctions. Further, Plaintiff’s counsel should have at least acknowledged that an initial production of documents had been made and that BMW was relying in large part on CCP § 2030.230 to answer interrogatories, which might have enabled the Court to mediate a meet-and-confer process to address the form and special interrogatory shortcomings. The plaintiff’s use of form interrogatories with the word “incident” does not cleanly dovetail into SBA litigation, and most judges will not grant a motion to compel a further response to such form interrogatories as to which a timely objection is made. Instead, it appears to the Court that personal pride -- and a belief that standing one’s ground would demonstrate resolve -- have clouded both sides’ judgment.

It is true that in Song-Beverly litigation, the dealer repair records and manufacturer communication with the customer comprise a significant part of the information that will ultimately be presented to the jury. On the other hand, a plaintiff in a SBA case is entitled to discover the defendant’s facts that are beyond the face of the repair records. For example, why does the defendant contend that the high voltage battery issue that Plaintiff reported is not “substantial?” What facts does BMW rely upon for its contention as to the cause of the de-charging or very limited mileage complaint that its authorized dealers could not verify in the shop? Does BMW have fact suggesting that Plaintiff was misusing the vehicle or was doing something that caused rapid sapping of a full battery charge? What facts does BMW infer from its dealer’s repair records and from its technical knowledge and literature to deny a number of the RFAs propounded? Normally, the defendant in a SBA case lists multiple paragraphs of facts in response to form interrogatory 17.1; that is not what the Court sees here. Normally the manufacturer identifies its own technical literature that it may end up relying on to support its PMK or expert’s testimony, rather than asserting “confidential business and proprietary information.”

At the hearing, the Court would appreciate BMW’s explanation of the August date of Michael W. McCaffrey’s verifications, given the further responses date in November.

The Court does not believe there has been a willful failure to comply with discovery here nor that BMW thumbed its nose at the Court’s order. Thus a terminating sanction is not appropriate What is appropriate is the following:

1. Plaintiff shall identify each of the verified responses to the four sets of discovery as to which a further response is deemed required, in a letter to be emailed to BMW’s counsel by 2/10/23.

2. Defendant shall respond to that letter by 2/24/23, indicating that it will or will not provide a further more substantive response.

3. For those discovery requests as to which BMW agrees to give further response, the defendant shall have until March 15, 2023 to provide a verified supplemental or further response. If it reconsiders and opts to give a further response to any discovery requests it previously declined to on 2/24/23, BMW may give further responses to them as well in its March 15, 2023 further or supplemental responses. A “Word” version of the further or supplemental responses must be emailed on 3/15/23, to facilitate Plaintiff’s creation of a Separate Statement if a motion to compel further responses is to be filed.

4. Plaintiff’s time to bring a motion or motions to compel further responses to any of the discovery requests listed in the 2/10/23 letter is hereby extended for good cause shown through and including 5/1/23. A Separate Statement must accompany any such motion. A “Word” version of the Separate Statement shall be emailed along with the motion or motions on 5/1/23, so that BMW may fill in its response in a composite document that BMW shall file along with its written opposition to the motion(s). The Court encourages Plaintiff to reserve the hearing date for such a motion now.

5. The Court will continue the May 24 trial date in this case to enable this discovery and potential discovery motion activity to occur. Parties should come to the hearing with a trial calendar in hand so a new date can be agreed upon.