Keith Moore vs BMW North America LLC et al

Case Number

22CV03224

Case Type

Hearing Date / Time

Fri, 02/16/2024 - 10:00

Nature of Proceedings

CMC; Motion for Admissions; (3) Motions to Compel

Tentative Ruling

The Court will grant the motions, and issue an order compelling BMW to provide verified responses to the discovery, without objections, no later than March 7, 2024. To the extent that plaintiff sought to have the matters set forth in the Requests for Admissions deemed admitted, however, that request is denied. The Court’s order compelling responses without objections is made without prejudice to BMW’s ability to file a properly supported motion for relief from its waiver of objections. If such a motion has been filed and served prior to March 7, 2024, the March 7, 2024, deadline for providing responses without objections will be deferred pending a ruling on the motion.

Background: Plaintiff’s complaint, filed August 19, 2022, alleges claims arising alleged defects in a 2021 BMW M8 Gran Coupe which he purchased from defendant Santa Barbara Auto Group, and which was manufactured by defendant BMW of North America, LLC (BMW).

On July 26, 2023, plaintiff electronically served on defendant BMW Requests for Production (Set 1), Form Interrogatories (Set 1), Special Interrogatories (Set 1), and Requests for Admissions (Set 1). On August 28, 2023, BMW requested an extension to respond to September 28, 2023. Plaintiff agreed to extend BMW’s time to respond to the discovery to September 28, 2023. On September 27, 2023, BMW requested a further extension of time to respond to the discovery to October 28, 2023. This time, plaintiff declined to agree to the extension of time, and the response date remained September 28, 2023.

BMW acknowledges that its discovery responses were not served by September 28, 2023. Rather, it contends that its responses were inadvertently served late because of an inadvertent calendaring error under which defense counsel incorrectly believed that the extension of time to respond by October 28, 2023, had been granted by plaintiff, when in fact it had not. BMW contends that upon being made aware of its error, it served responses and document production on October 11, 2023. It provides, as exhibits, copies of the responses, with proofs of service attached.

The proofs of service attached to BMW’s discovery responses, as they appear in the court file, are indecipherable on their face. Each proof of service contains a paragraph referring to service by U.S. Mail, and a paragraph referring to service by electronic service/email. In front of the paragraph referring to service by U.S. Mail is the symbol “£”, the meaning of which is unknown to the Court. In front of the paragraph referring to service by electronic service/email is the letter “R”, again, the meaning of which is unknown to the Court. On their faces, the proofs of service do not clearly indicate whether service was by U.S. Mail, electronic service/email, both, or neither. The declaration of counsel, submitted in opposition to each of the motions, does not clarify the manner of service, merely stating that that the discovery was “served” on October 11, 2023.

Regardless of the manner of service (or nonservice) of the discovery responses, the responses were not received by plaintiff on October 11, 2023, or on any date reasonably thereafter. After not receiving responses, plaintiff’s counsel contends that he contacted defense counsel via email on October 16, 2023, noting that he had not received the discovery responses. Defense counsel responded the same day by stating that she believed the responses had been served the previous week, but that she would check on the responses and forward them to plaintiff’s counsel. Plaintiff’s counsel responded by providing his eservice address of eserve@tracylaw.com, for defense counsel’s ease of use. (Note: The Court notes that this eservice address was not reflected anywhere on any of BMW’s proofs of service.)

On October 27, 2023, plaintiff’s counsel again contacted defense counsel via email, to advise that he had still not received defendant’s responses to the discovery, and requesting that BMW serve responses without objections.

When responses still had not been received by November 28, 2023, plaintiff filed the current motions to compel responses to the form and special interrogatories and requests for production, and for deemed admissions. None of the motions seek sanctions from BMW.

On February 8, 2024, BMW filed belated opposition to the motions, asserting that it had served code-compliant discovery responses on October 11, 2023, that the failure to respond had been inadvertent, that plaintiff had not met and conferred prior to filing the motions, that the motions are moot, and requesting that each motion be denied. The opposition papers attached as exhibits the discovery responses it contends it had previously served. The opposition papers are each accompanied by a proof of service which reflects the same defects as those articulated above, with respect to the proofs of service attached to each of the discovery responses.

On February 9, 2024, plaintiff filed reply papers. Plaintiff’s counsel submitted a supplemental declaration, in which he stated that he had conducted a thorough search of his firm’s received physical mail, eservice email account, and email account identified for service on BMW’s proofs of service for both its opposition papers and its discovery responses, as well as his firm’s physical mailbox. He declares that he never received any discovery responses by eservice or physical copies, and the first date that he received either the opposition papers or the discovery responses was February 8, 2024.

In his reply papers, plaintiff noted that no meet and confer effort is required prior to filing motions to compel any discovery responses. He further noted that the filing of untimely responses does not moot a motion to compel responses without objection, citing Sinaiko Healthcare Consulting, Inc. v. Pac. Healthcare Consultants (2007) 148 Cal.App.4th 390, 405-407. He contends that defendant is not entitled to relief from its waiver of objections, given that such relief is only available pursuant to Code of Civil Procedure section 2030.290(a) (interrogatories), 2031.300(a) (production requests), and 2033.290(a) [requests for admissions], through the filing of a motion for relief from the waiver of objections. (See Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4^th 263, 274-275.) Any such motion requires that the party have subsequently served a response that is in substantial compliance with he statutory requirements for response, and establish that the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. Plaintiff contends that BMW has not filed any such motion, and would not be able to establish that its responses are in substantial compliance, or adequately explain its claimed mistake that an extension had been granted when plaintiff’s denial could not have been clearer.

ANALYSIS: The Court finds the circumstances presented by these motions to be both perplexing and troubling. BMW claims to have served responses to the discovery requests on October 11, 2023, even while acknowledging that these responses were served two weeks late. None of the responses were received by plaintiff, and the proofs of service attached to each of the discovery responses are defective on their faces (see discussion of proofs of service, above) and do not permit the Court to find that the responses were properly served—or even served at all.

To complicate matters, once BMW’s counsel was advised by plaintiff’s counsel on both October 16, 2023, and October 28, 2023, that the responses had still not been received, BMW’s counsel made no attempt to follow up and ensure that the admittedly-already-untimely responses found their way to plaintiff’s counsel. This left no recourse for plaintiff but to file the motions to compel responses, seeking an order compelling responses without objections, and the motion for deemed admissions.

There is no meet and confer requirement for such motions, but even if there were, plaintiff’s two communications prior to filing the motions, pointing out that he had never received any responses, would have fulfilled any such requirement.

Having apparently received the motions to compel which were served on them on November 28, 2023, which sought responses without objections, BMW’s counsel still made no attempt to ensure that the responses were actually received by plaintiff’s counsel. Indeed, BMW’s counsel waited until long past the time for opposition to the motion had expired, to file oppositions to the motions which contended that the motions were all moot because of BMW’s October 11, 2023, service of responses—which BMW had already twice been informed did not actually result in the responses making their way to plaintiff. Further, while the oppositions claim that the original failure to timely respond was inadvertent, BMW has not filed any motion for relief from its waiver of objections arising from the admittedly-untimely discovery responses.

Even giving BMW the benefit of every doubt, these circumstances require that the motions be granted, and that the Court issue an order compelling BMW to provide verified responses to the discovery, without objections, no later than March 7, 2024. To the extent that plaintiff sought to have the requests for admissions deemed admitted, that request is denied. The order compelling responses without objections is made without prejudice to BMW’s ability to file a properly supported motion for relief from its waiver of objections. If such a motion has been filed and served (and received by plaintiff’s counsel) prior to March 7, 2024 (only one motion for relief from the waiver of objections need be filed, related to all four discovery requests), the March 7, 2024, deadline for providing responses without objections will be deferred pending a ruling on the motion for relief from the waiver of objections.