Judge: Ronald F. Frank, Case: 23TRCV01178, Date: 2024-03-07 Tentative Ruling

Case Number: 23TRCV01178    Hearing Date: March 21, 2024    Dept: 8

Tentative Ruling¿¿ 

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HEARING DATE:                    March 21, 2024¿ 

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CASE NUMBER:                      23TRCV01178

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CASE NAME:                           Ali Mohaved v. BMW of North America, LLC, et al.   

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MOVING PARTY:                (1) Plaintiff, Ali Mohaved

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RESPONDING PARTY:        (1) Defendant, BMW of North America, LLC

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TRIAL DATE:                       April 7, 2025

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MOTION:¿                              (1) Motion to Compel Deposition Attendance and Production of Documents without Objection, by Defendant BMW of North America ,LLC’s Person Most Knowledgeable.

                                                (2) Motion to Compel Further Responses to Requests for Production of Documents, Set One

                                               

Tentative Rulings:                     (1) GRANT in part.  The Court orders the agreed-upon May 21 PMK deposition on the categories and duces tecum noticed on November 28, 2023, but without ruling on the objections until we see what BMW’s production of documents at or before the deposition contains

                                                (2) ARGUE the RFP, given that it appears BMW responded to all but 3 of the original Requests and expressed willingness to produce technical literature subject to the protective order that the parties have since executed

                                                (3) On its own motion, the Court VACATES the mistaken Minute Order of March 7, 2024 on the PMK deposition and its duces tecum

 

                                               

I. BACKGROUND¿¿¿ 

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A. Factual¿¿¿ 

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On April 17, 2023, Plaintiff, Ali Mohaved (“Plaintiff”) filed a Complaint against Defendant, BMW of North America, LLC, and DOES 1 through 100. The Complaint alleges causes of action for: (1) Violation of Song-Beverly Act – Breach of Express Warranty; (2) Violation of Song-Beverly Act – Breach of Implied Warranty; and (3) Violation of the Song-Beverly Act § 1793.2(b). 

 

On July 31, 2023, Plaintiff notes that he properly noticed the deposition of Defendant’s PMK and sought Defendant’s documents relating to this case. Plaintiff contends it had to notice the PNK deposition on two more occasions, battling through BMW’s objections, and the unilateral cancellation of a confirmed PNK deposition date, over the next four months before serving Plaintiff’s confirmed PMK Deposition Notice on November 28, 2023, setting the deposition for January 5, 2024, trimmed down the Matters of Examination from twenty-eight (28) to nine (9), and reduced the categories of Documents to be produced from thirty-one (31) to twenty-three (23).

 

However, Plaintiff notes that rather than timely producing a witness or witnesses in response to the PMK deposition notice, Defendant stonewalled Plaintiff and refused and continues to refuse to produce a PMK as to any of the matter specified in Plaintiff’s Notice of Deposition. Plaintiff asserts that though it has been pursuing this critical deposition for more than five (5) months, BMW has still failed to produce anyone as their PMK, failed to produce documents, and has not served objections or other responses to Plaintiff’s November 28, 2023 Confirmed PMK Notice of Deposition. As such, Plaintiff has brought this Motion to Compel the Deposition of BMW’s PNK and Production of Documents.

 

Further, Plaintiff notes that he propounded Requests for Production of Documents, Set One on Defendant, BMW on August 1, 2023. On September 4, 2023, Plaintiff contends that BMW served unverified and non-compliant responses to the requests, and produced no documents. Through meet and confer efforts between the parties, Plaintiff notes that he was able to coax further responses and document production out of BMW on October 13, 2023, and BMW verified those responses on October 16, 2023. Nonetheless, Plaintiff maintained that such responses were still insufficient in further meet and confer communications on October 24, 2023, October 27, 2023, and November 17, 2023. Despite this, Plaintiff argues that BMW still has not produced its Warranty Vehicle Inquiry (“WVI”), which BMW agreed to produce, and continues to refuse producing responsive documents relating to preparation of Technical Service Bulletins (“TSBs”) and Recalls pertaining to the subject vehicle. As such, Plaintiff has also brought a Motion to Compel Further Responses to Requests for Production of Documents, Set One.

 

B. Procedural¿¿¿ 

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On January 18, 2024, Plaintiff filed this Motion to Compel Deposition Attendance and Production of Documents, without objection, by Defendant BMW’s PMK.  The motion came up for hearing on March 7, 2024 which was attended by Plaintiff’s counsel but not by BMW’s counsel, and as to which the Court had posted a tentative ruling.  In the absence of any opposition or appearance by BMW, the Court mistakenly granted the motion which had not been noticed for March 7 but which was on the calendar for that date.  Plaintiff’s counsel did not notify the Court that the March 7 hearing was NOT the date noticed in the motion, and the Court mistakenly failed to identify that mistake until working up the two motions scheduled for March 21.   Plaintiff’s counsel gave BMW written notice of the mistaken March 7 ruling.  Accordingly, and on its own motion, the Court VACATES the March 7 minute order as having been mistakenly ruled upon without input from BMW and on the wrong hearing date.  On March 14, 2024, Defendant BMW filed an opposition to the PMK deposition motion that had been noticed for a March 21, not March 7, hearing. To date, no reply brief has been filed.  

 

Further, on January 25, 2024, Plaintiff filed a Motion to Compel Further Responses to Requests for Production of Documents, Set One by Defendant BMW. On March 7, the Court ordered that this motion’s hearing date be moved to March 21, and the Plaintiff gave written notice of that changed hearing date in the same notice or ruling that contained the notice of the mistaken granting of the PMK deposition motion.  On March 14, 2024, BMW filed an opposition. To date, no reply brief has been filed.

 

¿II. ANALYSIS¿¿ 

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A.    Motion to Compel the Deposition of BMW’s PMK

 

Code of Civil Procedure section 2025.450, section (a) provides:  

 

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” 

 

(Code Civ. Proc., § 2025.450, subd. (a).)  

 

The motion must “be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition…by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.” (Code Civ. Proc., § 2025.450, subd. (b)(2).) A court shall impose monetary sanctions if the motion to compel is granted unless the one subject to sanctions acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (Code. Civ. Proc., § 2025.450, subd. (g)(1).)  

 

Meet and Confer

 

            Pursuant to Code of Civil Procedure section 2025.450(b)(2), a Motion for an Order Compelling the Deponent’s Attendance and Testimony shall be accompanied by a meet and confer declaration under section 2016.040. As noted in Plaintiff’s counsel, Sepehr Daghighian’s (“Daghighian Decl.”) declaration, since August 2023, Plaintiff’s counsel has sent meet and confer letters to counsel for Defendant in order to set a mutually agreeable date for the deposition. Per this declaration, Plaintiff indicates that after the originally noticed date in August to which BMW objected, the parties agreed on an October 11 date for the PMK deposition.  But on October 6, BMW served written objection and did not produce a witness on October 11.  After letters and a telephonic meet and confer, a new PMK deposition date of January 5 was agreed upon, per the Daghighian Decl., along with a reduction in the number of categories and scope of the deposition.  Plaintiff thus served an updated notice of the PMK deposition and the trimmed categories of requested documents on November 28, 2023.  The Court is satisfied that there was a good faith meet and confer process in 2023.  What occurred in early 2024 is discussed below.

 

Discussion

 

            Here, Plaintiff argues that good cause exists to order Defendant to produce its PMK and custodian of records because or Plaintiff’s frustration with the setting and cancellation of the PMK deposition now multiple times.  Plaintiff contends it has properly noticed the PMK deposition five times and the information sought is relevant and necessary to Plaintiff’s case. After months of back and forth, Plaintiff notes that it timely served his Confirmed Notice of Deposition of Defendant’s PMK and Custodian of Records on November 28, 2023, thus obligating Defendant’s attendance and document production on January 5, 2024. However, per the movng papers, Plaintiff reports that on January 4, 2024, Defendant, again, unilaterally cancelled the confirmed deposition – citing, “an unexpected conflict” – and proposing March 12th or 13th. Plaintiff argues that by refusing to provide dates, and follow through on them, BMW is impeding Plaintiff’s ability to conduct basic discovery in order to handicap Plaintiff at trial. In BMW’s opposition, they argue this motion is moot because BMW has complied and provided a date for the PMK deposition.

 

Nonetheless, the parties have not taken this motion off calendar, but the Court notes that the proposed dates by BMW for March 12th or 13th have since passed with the deposition still not having taken place.  In BMW’s opposition papers, BMW now states it can produce its PMK for deposition on May 21, 2024. The Court thus does not believe this motion is mooted as the deposition date is continuously being unilaterally postponed by PMW now several times.  However, the Court does not find that on the record before it, the fact warrant the order that Plaintiff is seeking. Plaintiff’s motion asserts that this Court order Defendant, within 10-day: (1) produce its deponent(s) most qualified to testify as to each Matter of Examination contained in the November 28, 2023 Confirmed PMK Deposition Notice, without objection; and (2) to produce the documents requested in the aforementioned PMK Deposition Notice, without objection. The Court will order a May 21 PMK deposition on the categories noticed on November 28 and with that noticed deces tecum, but the Court will not rule on the objections to the document categories until after the deposition proceeds. 

 

 

B.    Motion to Compel Further Responses to Requests for Production of Documents

 

Discussion

 

            The Moving papers indicate that BMW did provide verified written responses complying with the statutory requirements of stating a willingness to comply, as to all but the 3 technical literature categoes requested.  The parties have since signed a stipulated protective order to restrict dissemination of the technical literature and recall documents, but it is unclear tot eh Court whether those remaining 3 categories remain outstanding or whether responsive documents have now been proeuced subject tot eh protective order.  The Court will hear oral argument and make a further ruling or continue the hearing pending submission of supplemental declarations.