Keith Moore vs BMW North America LLC et al

Case Number

22CV03224

Case Type

Hearing Date / Time

Fri, 09/20/2024 - 10:00

Nature of Proceedings

(4) Motions to Compel

Tentative Ruling

(1) For all reasons discussed herein, the motion of plaintiff to compel defendant’s further responses to set one requests for production is granted. On or before October 1, 2024, defendant BMW of North America, LLC, shall serve verified, code compliant further responses to plaintiff’s set one requests for production nos. 1 through 12, without the objections overruled herein. Except as otherwise herein granted, the motion is denied.

(2) For all reasons discussed herein, the motion of plaintiff to compel defendant’s further responses to set one special interrogatories is granted. On or before October 1, 2024, defendant BMW of North America, LLC, shall serve verified, code compliant further responses to plaintiff’s special interrogatories nos. 2 through 12, without the objections overruled herein.

(3) For all reasons discussed herein, the motion of plaintiff to compel defendant’s further responses to set one requests for admission is denied.

(4) For all reasons discussed herein, the motion of plaintiff to compel defendant’s further responses to plaintiff’s set one form interrogatories is granted. On or before October 1, 2024, defendant BMW of North America, LLC, shall serve a verified, code compliant further response to plaintiff’s form interrogatory no. 17.1 and each of its subparts, without the objections overruled herein. Except as otherwise herein granted, the motion is denied.

Background:

On August 19, 2022, plaintiff Keith Moore (Moore) filed a complaint against defendants BMW North America, LLC (BMW) and Santa Barbara Auto Group (the Auto Group) alleging nine causes of action: (1) breach of the implied warranty of merchantability (Civil Code section 1794 (against BMW only); (2) breach of the implied warranty of fitness (Civil Code section 1794) (against BMW only); (3) breach of express warranty (Civil Code section 1794) (against BMW only); (4) violation of the Magnuson-Moss Warranty Act (against BMW only); (5) failure to promptly repurchase product (Civil Code section 1793.2, subd. (d)) (against BMW only); (6) failure to commence repairs within a reasonable time and to complete them within 30 days (Civil Code section 1794) (against BMW only); (7) violation of Civil Code section 1793.2, subdivision (a)(3) (against BMW only); (8) negligent repair (against the Auto Group only); and (9) concealment (against BMW only). As alleged in the complaint:

On March 19, 2023, Moore purchased a new 2021 BMW M8 Gran Coupe (the vehicle) manufactured, distributed, and sold by BMW. In connection with the purchase, Moore received an express written warranty (the warranty) under which BMW undertook to maintain the utility and performance of the vehicle or to provide compensation upon a failure in utility or performance for a specified period of time. The warranty further provides that in the event a defect developed with the vehicle during the warranty period, Moore could deliver the vehicle for repair to BMW’s representative and the vehicle would be repaired.

During the warranty period, safety defects developed with respect to the vehicle’s braking system (the braking defects). BMW had knowledge of the braking defects, and that the vehicle and other 2021 model BMW vehicles experienced symptoms relating to the braking defects, before the date Moore purchased the vehicle but concealed and failed to disclose the defective nature of the vehicle to Moore at the time of sale. Moore delivered the vehicle to the Auto Group, which is BMW’s authorized repair facility for warranty repairs. BMW and the Auto Group failed to repair the vehicle in conformance with the warranty, or to replace the vehicle or make restitution to Moore.

On September 26, 2022, BMW filed its answer to the complaint, generally denying its allegations and asserting twenty-three affirmative defenses.

On December 1, 2023, Moore filed a request for dismissal of the complaint, without prejudice, as to the Auto Group only.

Prior Discovery Matters:

Court records reflect that on November 28, 2023, Moore filed four discovery motions: (1) a motion for an order compelling BMW to respond without objection to Moore’s set one form interrogatories (the FI); (2) a motion for an order compelling BMW to respond without objection to Moore’s set one special interrogatories (the SI); (3) a motion for an order compelling BMW to respond without objection to Moore’s set one requests for production (the RFP); and (4) a motion for an order deeming Moore’s set one requests for admission (the RFA) admitted (collectively, the prior motions to compel). The prior motions to compel, which were belatedly opposed by BMW, were brought on the grounds that BMW failed to serve responses to the FI, SI, RFP, and RFA (collectively, the discovery requests) by the September 28, 2023, extended deadline granted by Moore, or at any time after.

On February 16, 2024, the Court granted the prior motions to compel and ordered BMW to provide verified responses to the discovery requests, without objections, no later than March 7, 2024. (Feb. 16, 2024, Minute Order.) The Court denied the request of Moore to have the matters set forth in the RFA deemed admitted. (Ibid.) The Court’s February 16, 2024, order was made without prejudice to BMW’s ability to file a properly supported motion for relief from its waiver of objections provided any such motion was filed and served prior to March 7, 2024.

On March 6, 2024, BMW filed a motion for relief from the Court’s February 16, 2024, order on the prior motions to compel, which was opposed by Moore. In the motion for relief, BMW contended that it had served responses to the discovery requests which were in substantial compliance with applicable discovery statutes, and that BMW’s failure to timely serve the responses resulted from a miscommunication and inadvertent miscalendaring of the response date, given that counsel erroneously believed that a second extension of time to respond had been granted by Moore.

On May 17, 2024, the Court granted the March 6, 2024, motion of BMW for relief from the February 16, 2024, order, relieving BMW from its waiver of objections to the discovery requests. (May 17, 2024, Minute Order.) Further, the Court deemed May 17, 2024, as that date on which responses to the discovery requests were provided by BMW for purposes of determining the time within which Moore must file any motion(s) to compel further responses to the discovery requests.

Moore’s July 1, 2024, Motions:

On July 1, 2024, Moore filed four motions: (1) a motion for an order compelling BMW to provide further responses, without objections, to RFP nos. 1 through 12 (the RFP motion); (2) a motion for an order compelling BMW to provide further responses, without objections, to SI nos. 1 through 12 (the SI motion); (3) a motion for an order compelling BMW to provide further responses, without objections, to RFA nos. 1 through 3 (the RFA motion); and (4) a motion for an order compelling BMW to provide further responses without objections, to FI no. 17.1 (the FI motion).

In support of his July 1, 2024, motions described above (collectively, the motions or present motions), Moore submits the declaration of his counsel, Matthew Pardo (Pardo). Attached to the Pardo declaration as exhibits 5 through 8 are the responses of BMW the discovery requests, each of which were ostensibly served by BMW on October 11, 2023. Pardo declares that on May 18, 2024, he sent a letter addressing the inadequacies of BMW’s responses to the discovery requests and inviting counsel for BMW to discuss the problems by phone or Zoom. (Pardo Decl., ¶¶ 17-18 & Exh. 11.)

Following subsequent communications between the parties, on June 3, 2024, counsel for the parties communicated by phone regarding BMW’s responses to the discovery requests. (Pardo Decl., ¶¶ 18-22 & Exh. 12.) During counsel’s June 3, 2024, phone call, BMW indicated that it was unlikely to supplement or amend many of the requests, but that there were certain requests that it might consider supplementing or amending. (Id. at ¶ 22.) Following this phone call, Pardo sent an email to counsel for BMW asking for clarification as to whether and in what manner BMW would supplement or amend certain responses, to which BMW’s counsel responded that he would keep in mind what the parties’ discussed and review the case. (Ibid.) Counsel for BMW otherwise affirmed no commitment to supplement or amend its responses to the discovery requests. (Ibid.)

Because BMW did not supplement or amend, or otherwise indicate or affirm any intention to supplement or amend, its responses to the discovery requests, Pardo reached out to BMW’s counsel on June 14, 17, and 24, 2024. (Pardo Decl., ¶¶ 23-24.) On June 24, 2024, BMW’s counsel acknowledged BMW’s delay and promised to respond that week. (Id. at ¶ 25.) Pardo proposed a continuance of BMW’s response deadline to July 8, 2024, to allow BMW to propose supplementation of its responses, but BMW did not confirm an extension of Moore’s deadline to file a motion to compel and did not follow up in any manner regarding supplementation. (Id. at ¶¶ 25-26.)

The present motions are each opposed by BMW.

Analysis:

(1) Procedural Matters

There exist procedural problems with each of the separate statements submitted by Moore in support of the motions. Each page of a paper filed with the Court “must be numbered consecutively at the bottom unless a rule provides otherwise for a particular type of document. The page numbering must begin with the first page and use only Arabic numerals (e.g., 1, 2, 3).” (Cal. Rules of Court, rule 2.109.) The pages of each separate statement submitted by Moore are not numbered consecutively. For example, the separate statement submitted in support of the RFP motion begins at page 1. The second page is also numbered as page “1”. After page 10, the page numbers start again with page 1. This problem is repeated in each of the separate statements submitted by Moore.

The failure of Moore to comply with California Rules of Court, rule 2.109, has made it difficult for the Court to cite to page numbers within each separate statement. As a result, the Court is forced to refer to the “PDF” page numbers of each separate statement as they appear in the Court’s file. Counsel is reminded of their obligation to comply with court rules.

(2) The RFP Motion

There exist additional procedural problems with the separate statement submitted in support of the RFP motion.

A separate statement accompanying a motion to compel further responses to inspection demands must include “for each discovery request … to which a further response, answer, or production is requested”, the text of each request and associated response at issue, a statement of the “factual and legal reasons” to compel a further response and, if necessary, the text of all definitions or other matters required to understand each request and response. (Cal. Rules of Court, rule 3.1345(c)(1)-(4), italics added.) “Material must not be incorporated into the separate statement by reference.” (Cal. Rules of Court, rule 3.1345(c).) A court may deny a motion to compel further responses to discovery based on the moving party’s failure to comply with the requirements of California Rules of Court, rule 3.1345. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893; Neary v. Regents of University of California (1986) 185 Cal.App.3d 1136, 1145.)

The separate statement submitted in support of the RFP motion includes an introductory “response” to “general objections” purportedly asserted by BMW in response to the RFP as a whole. (Sep. Stmt. [RFP Motion] at PDF pp. 2-10.) Though Moore offers arguments to show that the “general objections” of BMW are without merit, wholly absent from the introductory “response” is the text of the referenced “general objections”, as required by California Rules of Court, rule 3, 1345(c)(2). By failing to include the text of each general objection that Moore contends is improper or without merit, Moore has forced the Court to review the RFP attached to the Pardo declaration to determine the nature of these objections, in violation of court rules. (See Cal. Rules of Court, rule 3.1345(c) [“[t]he separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response”].)

In addition, Moore incorporates his introductory “response” to the general objections of BMW “by reference” into subsequent statements of insufficiency for each RFP at issue. (Sep. Stmt. [RFP Motion] at PDF p. 2, ll. 18-19.) Under the provisions of California Rules of Court, rule 3.1345(c), the incorporation of material by reference into a separate statement is improper. Because the separate statement submitted in support of the RFP motion fails to comply with court rules for all reasons discussed above, to the extent Moore seeks in the RFP motion an order overruling the “general objections” of BMW to the RFP, Moore’s request will be denied.

Notwithstanding the procedural deficiencies described above, with respect to the RFP motion, Moore must “set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b).) Under circumstances where there exist no issues or claims of privilege, the burden to demonstrate good cause is “met simply by a fact-specific showing of relevance.” (Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117; Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98 (Kirkland).) Moore must meet his burden without incorporating material by reference or requiring the Court to review any other document.

RFP Nos. 1 and 3:

RFP nos. 1 and 3 seek the production of documents relating to the vehicle and communications between BMW and its dealerships regarding the vehicle. (Sep. Stmt. [RFP Motion] at PDF pp. 11 & 13.) Based on the allegations of the complaint further described above and information offered by Moore in the separate statement, the subject matter of RFP nos. 1 and 3 relate and directly pertain to the vehicle at issue in this litigation. For this reason, the requests stated in RFP nos. 1 and 3 appear reasonably calculated to reveal admissible and may assist Moore to evaluate his claims regarding the vehicle and to prepare for trial.

In its response to the separate statement of Moore, BMW offers no reasoned argument to demonstrate why there exists no good cause for the production of the documents requested in RFP nos. 1 and 3. Instead, BMW appears to concede that good cause exists for the requests stated in these RFP. (See, e.g., Opp. Sep. Stmt. at PDF p. 23 [asserting that BMW provided code compliant responses to RFP nos. 1 and 3].) Therefore, for all reasons described above, the Court finds that good cause exists for the requests stated in RFP nos. 1 and 3.

RFP No. 2:

RFP no. 2 requests the production of documents “involving any warranty claims involving the same year make and model as the [vehicle] for the same alleged loud brake defect.” (Sep. Stmt. [RFP Motion] at PDF p. 12.) Moore contends that good cause exists for the request stated in RFP no. 2 because records pertaining to warranty claims for the specific issue complained of by Moore in in this action and which also exist in the same type of vehicle will show that Moore’s problem is common and that BMW was aware of the severity of the problem but ignored its statutory obligations. (Id. at PDF p. 13.) Moore also contends that the condition of the vehicle’s brakes is central to the allegations of the complaint. (Ibid.)

BMW contends that because the terms “warranty claims” and “loud brake defect” are not defined in RFP no. 2, it is left to guess at what documents Moore seeks. (Opp. Sep. Stmt. [RFP Motion] at PDF p. 26.) BMW further contends that its statutory obligations are unrelated to the manner in which it handled, repurchased, or replaced any other vehicle, and that complaints from other consumers with respect to vehicles that were not subject to the same conditions or the same service history are not relevant to the issues raised in the complaint. (Ibid.)

Code of Civil Procedure section 2016.010 et seq. (the Civil Discovery Act) permits discovery “regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.) The term “subject matter” is “ ‘broader than the issues’ and is not limited to admissible evidence.” (Jessen v. Hartford Casualty Ins. Co. (2003) 111 Cal.App.4th 698, 711.) In addition, “[f]or discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement....’ [Citation.] Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546, original italics (Gonzalez).)

Though the request stated in RFP no. 2 is not a model of clarity, it is reasonable to interpret the demand to refer only to warranty claims relating to the same braking defects alleged in the complaint and made with respect to vehicles of the same year make and model as the vehicle at issue in the present litigation. To the extent the demand is limited in this manner, the scope of RFP no. 2 appears reasonably calculated to lead to the discovery of admissible evidence with respect to the existence and BMW’s knowledge of the braking defects in vehicles of the same year, make, and model as the subject vehicle notwithstanding whether the documents described in RFP no. 2 may, to some extent, include materials that do not directly pertain to the repairs alleged in the present action. Moreover, “doubts about the permissible scope of discovery are to be resolved in favor of disclosure.” (Advanced Modular Sputtering, Inc. v. Superior Court (2005) 132 Cal.App.4th 826, 835.) Moreover, to the extent BMW is not clear as to the specific nature of the “warranty claims” and “loud brake defect” described in RFP no. 2, BMW could have satisfied its discovery obligations by providing a response in accordance with its understanding of the meaning of these terms. (See, e.g., SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 758 (SCC Acquisitions); see also Code Civ. Proc., § 2031.240, subds (a), (b).)

As the request stated in RFP no. 2 is relevant to the subject matter of this litigation for all reasons further discussed above, the Court finds that good cause exists for RFP no. 2.

RFP Nos. 4 through 12:

RFP nos. 4 through 12 request the production of documents which support the second, fourth, ninth, tenth, eleventh, twelfth, seventeenth, and eighteenth affirmative defenses of BMW, and BMW’s affirmative defense of preemption. (Sep. Stmt. [RFP Motion] at PDF pp. 14, 16-18, 20-22, 24-25.) “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.” (Code Civ. Proc., § 2017.010.) As the requests stated in RFP nos. 4 through 12 relate to the defenses of BMW, and as BMW offers no reasoned argument to show that there exists no good cause for the discovery of the defenses asserted by BMW in this action, the Court finds that good cause exists for the requests stated in RFP nos. 4 through 12.

BMW’s objections to RFP Nos. 1 through 12:

As Moore has demonstrated sufficient good cause for the requests stated in RFP nos. 1 through 12, BMW bears the burden to justify its objections to these RFP notwithstanding that Moore improperly incorporates arguments appearing in his introductory “response”. (Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1436; Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221 (Coy); Kirkland, supra, 95 Cal.App.4th at p. 98.)

Each of the objections of BMW to RFP nos. 1 through 12 are nearly identical, and include objections that the requests, including the term “DOCUMENTS”, are overly broad, vague, or ambiguous, and that the requests are not relevant and not reasonably calculated to lead to the discovery of admissible evidence or proportional to the needs of the case. (Sep. Stmt. [RFP Motion], PDF pp. 15-17, 19-26.) In addition, BMW objects to RFP no. 2 on the grounds that it seeks information that is “confidential and protected as proprietary, trade secret, and/or commercially sensitive”, and that the term “YOU” is “overly broad and compound, and includes entities not owned or operated by BMW ….” (Id. at PDF p. 12.)

To justify its objections to RFP nos. 1 through 12, BMW includes a general argument which appears to apply to the RFP as a whole in which BMW contends that its objections were necessary because of the “phrasing and expansive nature” of each RFP which, BMW argues, necessitated the assertion of identical or similar objections to avoid waiving these objections. (Opp. Sep. Stmt. [RFP Motion] at PDF p. 24.) BMW further contends that the expansive nature and scope of RFP nos. 1 through 12 will “intersect” with information protected by third party privacy privileges, and information which is confidential, commercially sensitive and proprietary. (Ibid.)

Though “[t]he court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence[]” (Code Civ. Proc., § 2017.020, subd. (a)), the party opposing discovery “has an obligation to supply the basis for this determination.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549 (Williams).) The overly general and conclusory arguments offered by BMW are insufficient to justify its objections to RFP nos. 1 through 12. For example, with respect to any claim of privilege, the responses of BMW fail to offer any factual information to enable the Court or Moore to evaluate the merits of that claim. (See Code Civ. Proc., § 2031.240, subd. (c)(1); see also Williams, supra, 3 Cal.5th at p. 554 [party objecting on grounds of privacy must establish “a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious”].)

With regard to objections based on burden, “some burden is inherent in all demands for discovery.” (West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal.2d 407, 418.) Therefore, an “objection based upon burden must be sustained by evidence showing the quantum of work required, while to support an objection of oppression there must be some showing either of an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought.” (Id. at p. 417.) In its opposition to the RFP motion, BMW offers insufficient information to demonstrate the quantum of work required to respond to RFP nos. 1 through 12, or whether the effect of any undue burden is incommensurate with the results sought by Moore. While the Court may limit the scope of discovery if it determines that the burden outweighs the likelihood that the information sought will lead to the discovery of admissible evidence, BMW has failed to supply a sufficient basis for such a determination. (See Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431; Williams, supra, 3 Cal.5th at p. 549.)

In addition, as further discussed above, the Court finds that there exists good cause for the requests stated in RFP nos. 1 through 12. BMW fails to explain why these RFP are irrelevant or not reasonably calculated to lead to the discovery of admissible evidence. Further, to the extent BMW contends that any particular RFP is vague or ambiguous, it is acceptable for BMW to provide a response and produce documents in accordance with its understanding of the meaning of a particular request or term as further discussed above. (SCC Acquisitions, supra, 243 Cal.App.4th at p. 758; see also Code Civ. Proc., § 2031.240, subds (a), (b).)

Further, regarding objections based on the purported existence of trade secrets or confidential information, BMW offers no information to permit the Court or Moore to determine whether this objection is meritorious. (See also Columbia Broadcasting System, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 23 [noting that party asserting objection based on confidentiality did not apply for a protective order].)

Though the examples provided above are intended to illustrate why BMW has failed to meet its burden, they are not necessarily exhaustive. For all reasons discussed above, BMW has failed to meet its burden to justify its objections to RFP nos. 1 through 12. Therefore, with the exception of objections based on the attorney-client or work product privileges, the Court will overrule the objections of BMW to RFP nos. 1 through 12. (See Korea Data Systems Co. v. Superior Court (1997) 51 Cal.App.4th 1513, 1516 [“boilerplate” objections based on attorney-client privilege are sufficient].)

The responses of BMW to RFP nos. 1 through 12:

A party responding to a demand for production of documents must respond, separately, to each request by either “[a] statement that the party will comply with the particular demand”, “[a] representation that the party lacks the ability to comply with the demand”, or an objection. (Code Civ. Proc., § 2031.210, subd. (a)(1)-(3).)

The response of BMW to RFP no. 2 consists solely of objections which the Court will, for reasons discussed above, overrule with the exception of those based on the attorney-client or work product privileges. Because the response of BMW to RFP no. 2 does not include any statement of compliance or representation of an inability to comply with the stated request, the response is not code compliant. Therefore, the Court will grant the RFP motion as to RFP no. 2, and require BMW to provide a further response without the objections overruled herein.

The substantive responses of BMW to RFP nos. 1 and 3 through 12 include identical statements that BMW will “comply in full with [the] request and produce all responsive documents within its possession, custody or control”, and a description of documents that BMW states it will produce in response to each request. (Sep. Stmt. [RFP Motion] at PDF pp. 11, 13-18, 20-25.) The responses also include a statement that BMW did not “sell, lease or service” the vehicle, and refer Moore to BMW of Santa Barbara, which BMW describes as an “independently owned and operated authorized repair facility who BMW NA believes to have performed service to the [vehicle], and who may be in possession of additional responsive documents.” (Ibid.)

The responses of BMW to RFP nos. 1 and 3 through 12 are deficient. For example, to the extent the objections of BMW to the RFP are made to only part of each request, BMW is required to include “a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.” (Code Civ. Proc., § 2031.240, subd. (a).) In addition, BMW is required to “[i]dentify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.” (Code Civ. Proc., § 2031.240, subd. (c)(1).) Though the Court will overrule the objections of BMW subject to exceptions noted above, the Court notes that the responses to RFP nos. 1 and 3 through 12 do not include information as to whether the objection is made to only part of each request, or which documents, if any, fall within the scope of each objection.

Further, a statement that a party will comply with a particular demand must also “state that the production … demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” (Code Civ. Proc., § 2031.220.) The responses of BMW do not include the language required under Code of Civil Procedure section 2031.220. In addition, because BMW has not identified which, if any, documents fall within any objection, it is unclear whether any documents have been withheld by BMW or why. Further, to the extent any documents have been withheld on the basis of an objection which relates to only part of a particular request, BMW has not provided a clear statement of compliance or representation of inability to comply with respect to the remainder of the request. (See Code of Civil Procedure section 2031.240, subds. (a) & (b).)

For all reasons discussed above, the substantive responses of BMW to RFP Nos. 1 and 3 through 12 are not code compliant. Therefore, the Court will also grant the motion as to RFP nos. 1 and 3 through 12, and require BMW to serve code compliant, verified further responses to these RFP without the objections overruled herein.

(3) The SI Motion

A party responding to interrogatories must respond separately to each interrogatory by either “[a]n answer containing the information sought to be discovered”, “[a]n exercise of the party's option to produce writings”, or “[a]n objection to the particular interrogatory. (Code Civ. Proc., § 2030.210, subd. (a)(1)-(3).) Each response to interrogatories “shall be as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc. §2030.220, subd. (a).) “If an interrogatory cannot be answered completely, it shall be answered to the extent possible.” (Code Civ. Proc., § 2030.220, subd. (b).) If the party responding to interrogatories does not have sufficient personal knowledge to enable that party to respond fully, “that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.” (Code Civ. Proc., § 2030.220, subds (c).)

The separate statement submitted in support of the SI motion also includes an introductory section addressing “general objections” of BMW to the SI. (Sep. Stmt. [SI Motion] at PDF pp. 2-11.) Though Moore includes the text of these general objections, Moore also states that, “[t]o avoid an unnecessarily long separate statement, and considering the uniform and repetitive nature of [BMW’s] objections, [Moore] expressly incorporates his response to [BMW’s] General Objections into each succeeding statement of insufficiency.” (Sep. Stmt. [SI Motion] at PDF p. 2, ll. 14-16.) For reasons further discussed above, the incorporation by reference of material in this manner is improper.

BMW’s “General Objections” to the SI:

To the extent a responding party objects to an interrogatory, “the specific ground for the objection shall be set forth clearly in the response.” (Code Civ. Proc., § 2030.240, subd. (b).) If only part of the interrogatory is objectionable, the remainder of the interrogatory must be answered. (Code Civ. Proc., § 2030.240, subd. (a).) In addition, as further discussed above, Code of Civil Procedure section 2030.210, subdivision (a)(3), requires a responding party to assert objections “separately” and as to each interrogatory. Because a responding party is required to assert specific objections to each interrogatory in each separate response, the “general objections” asserted by BMW are not authorized and are improper under the Civil Discovery Act. For this reason, the Court will overrule the “general objections” of BMW to the SI.

SI Nos. 1 through 3:

SI nos. 1 through 3 request, respectively, that BMW state all facts as to why BMW contends it is not liable for the defects alleged in the complaint, why the brakes on the vehicle make the alleged loud noises while braking, and why the brake noise on the vehicle at 103 decibels is not a defect. (Sep. Stmt. [SI Motion] at PDF pp. 12-13.) In its response to SI no. 1, BMW asserts objections that  SI no. 1 is: overly broad; not relevant and not reasonably calculated to lead to the discovery of admissible evidence or proportional to the needs of the case; seeks information that is confidential and protected as proprietary, trade secret, and/or commercially sensitive; is misleading and argumentative; and calls for a legal conclusion. (Sep. Stmt. [SI Motion] at PDF pp. 12-13.) BMW also objects to the definition of the term “YOU” or “YOUR” used in SI no. 1 as overly broad and compound, and because this term includes entities not owned or operated by BMW. (Id. at PDF p. 12.) Moore contends that these objections are improper and render the response of BMW to SI no. 1 evasive and incomplete.

As further discussed above, the burden is on BMW to justify its objections to SI no. 1. (Coy, supra, 58 Cal.2d at pp. 220-221.) BMW states that its objections are proper because it is entitled to assert objections to avoid a waiver, because the objections are “carefully crafted”, because BMW is not required to “guess or assume” what Moore seeks to discover in SI no. 1, and because SI no. 1 is not sufficiently precise or specific. (Opp. Sep. Stmt. [SI Motion] at PDF p. 11.) BMW’s general and conclusory assertions are insufficient to justify the objections to SI no. 1 detailed above for the same reasons further discussed above. Therefore, with the exception of objections based on the attorney-client or work product privileges, the Court will overrule the objections of BMW to SI no. 1.

The objections of BMW to SI nos. 2 and 3 are identical to those asserted in response to SI no. 1. (Sep. Stmt. [SI Motion] at PDF pp. 14-15.) BMW offers the same arguments to justify its objections to SI nos. 2 and 3. (Opp. Sep. Stmt. [SI Motion] at PDF pp. 13-14 & 16-17.) The same reasoning and analysis applies. For all reasons discussed above, the Court will overrule the objections of BMW to SI nos. 2 and 3 with the exception of those based on the attorney-client or work product privileges.

In its substantive response to SI no. 1, BMW contends that on each occasion the vehicle was presented for repairs, it was operating as like vehicles and that the dealership was able to repair the vehicle pursuant to the terms forth in the warranty. (Sep. Stmt. [SI Motion] at PDF p. 12.) BMW further contends that the vehicle does not suffer from any defect or nonconformity. (Ibid.) As SI no. 1 requests that BMW state facts as to why it is not generally liable for the “defects” alleged in the complaint, and as BMW effectively answers SI no. 1 by stating that the vehicle was repaired and did not suffer from the defects alleged in the complaint, BMW has provided the information sought in this SI in a complete and straightforward manner considering the general nature of the question presented. For this reason, the response of BMW to SI no. 1 is substantially code compliant and a further response is not necessary.

The responses of BMW to SI nos. 2 and 3 are identical to the response of BMW to SI no. 1. However, SI nos. 2 and 3 do not refer in general to “defects” alleged in the complaint, but request that BMW state facts regarding purported loud braking noises and the decibel levels of the brake noise, including whether these conditions would constitute defects. BMW’s duty to respond to SI nos. 2 and 3 is broad, and to the extent BMW does not have personal knowledge sufficient to respond fully to SI nos. 2 and 3, it must make a reasonable and good faith effort to obtain the information if it is available from sources under its control. (Code Civ. Proc., § 2030.220, subd. (c); Field v. U.S. Bank National Assn. (2022) 79 Cal.App.5th 703, 708.) The responses of BMW to SI nos. 2 and 3 do not indicate whether or why the information sought by Moore is unavailable or what, if any, efforts BMW made to obtain information responsive to these SI. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782-783, superseded by statute on another ground as stated in Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438, 444 (Deyo).)

As SI nos. 2 and 3 are specific and explicit with respect to the facts sought by Moore, BMW’s responses to these SI appear to misconstrue and evade the question. At best, the responses of BMW to SI nos. 2 and 3 supply only a portion of the information sought. For these reasons, the responses of BMW to SI nos. 2 and 3 are improper. (Deyo, supra, 84 Cal.App.3d at p. 783.) Furthermore, to the extent the responses of BMW to SI nos. 2 and 3 require reference to other documents, BMW must identify and summarize these documents to ensure each “answer is fully responsive to the question.” (Id. at p. 784.) BMW fails to provide this information with respect to documents identified in its responses to SI nos. 2 and 3.

For all reasons discussed above, the responses of BMW to SI nos. 2 and 3 do not substantially comply with code requirements. In addition, BMW is required to answer SI nos. 2 and 3 to the extent possible, which BMW has failed to do here. Therefore, the Court will grant the SI motion as to SI nos. 2 and 3 and require BMW to serve verified further responses to these interrogatories without the objections overruled herein. The Court notes that, while BMW may not purposefully misconstrue SI nos. 2 and 3, it is acceptable for BMW to provide a response according to its interpretation or understanding of the requests stated in SI nos. 2 and 3.

SI Nos. 4 through 12:

SI nos. 4 through 12 request that BMW state all facts which support the second, fourth, ninth, tenth, eleventh, twelfth, seventeenth, and eighteenth affirmative defenses of BMW, and BMW’s affirmative defense of preemption. (Sep. Stmt. [SI Motion] at PDF pp. 16-26.) BMW asserts objections to SI nos. 4 through 12 which are identical to the objections further discussed above with respect to SI nos. 1 through 3, and asserts the same arguments to justify these objections. (See Opp. Sep. Stmt. [SI Motion] at PDF pp. 17-41.) For all reasons discussed above, the Court will overrule the objections of BMW to SI nos. 4 through 12, with the exception of those objections based on the attorney-client or work product privileges.

The substantive responses of BMW to SI nos. 4 through 12 are identical or substantially similar to the responses to SI nos. 1 through 3, and also include references to documents. These responses are also not complete or straightforward. For example, BMW fails to explain why the purported fact that the vehicle did not suffer from defects or was repaired is relevant to affirmative defenses based on “unclean hands”, preemption, statute of limitations, failure to mitigate, estoppel, waiver, set off, or the constitutionality of Civil Code section 1790 et seq. (the Song-Beverly Consumer Warranty Act). (See Sep. Stmt. [SI Motion] at PDF pp. 16, 18-19, & 21-23.) Because the answers of BMW to SI nos. 4 through 12 are not complete or responsive to each question asked by Moore, the Court will grant the SI motion as to SI nos. 4 through 12, and require BMW to serve verified, code-compliant further responses, without the objections overruled herein.

Moore’s efforts to informally resolve the issues presented in the SI motion:

In its opposition to the SI motion, BMW contends that Moore failed to provide any formal meet and confer effort apart from a letter demanding further responses which did not, according to BMW, offer any substantive reason why the responses of BMW fail to comply with code requirements. (Opp. SI Motion at pp. 2 & 4.) A motion to compel further responses to interrogatories must be accompanied by a meet and confer declaration which “state[s] facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., §§ 2016.040; 2030.300, subd. (b)(1).) “This rule is designed ‘to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order....’ [Citation.] This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes. [Citations.]” (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1435.)

The record of correspondence between the parties demonstrates that plaintiff engaged in a reasonable and good faith attempt to informally resolve purported issues with defendant’s responses to the SI. (See Volkswagenwerk Aktiengesellschaft v. Superior Court (1981) 122 Cal.App.3d 326, 330 [“the burden of initiating such efforts is placed upon the moving party”].) The record further shows that the parties reached an impasse which they were unable to resolve. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294.) For this reason, the Court finds that Moore’s attempts to meet and confer with BMW were sufficient.

(4) The RFA Motion

Each answer to requests for admission must “[a]dmit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party”, “[d]eny so much of the matter involved in the request as is untrue”, or “[s]pecify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.” (Code Civ. Proc., § 2033.220, subd. (b)(1)-(3).) In addition, each answer must “be as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc., § 2033.220, subd. (a).)

In lieu of answering the substance of an admission request, a party may object to the request by clearly setting forth the specific ground for the objection in the response. (Code Civ. Proc., §§ 2033.210, subd. (b); 2033.230, subd. (b).) “If only a part of a request for admission is objectionable, the remainder of the request shall be answered.” (Code Civ. Proc., § 2033.230, subd. (a).)

BMW’s “General Objections” to the RFA:

For all reasons further discussed above, BMW’s wholesale objections to the entire set of RFA at issue in the RFA motion are improper. (Cembrook v. Superior Court (1961) 56 Cal.2d 423, 430.) Therefore, the Court will overrule the “General Objections” of BMW to the RFA.

RFA Nos. 1 through 3:

RFA nos. 1 through 3 request that BMW admit, respectively, that it designed the vehicle to make noise at a decibel level of at least 103 while braking, that the legal noise limit for cars in California is 95 decibels, and that noise above 95 decibels over a prolonged period of time can damage hearing. (Sep. Stmt. [RFA Motion] at PDF pp. 12-13.) BMW asserts identical objections to RFA nos. 1 through 3 as those further discussed above, and additional objections that these RFA call for speculation, are “vague and ambiguous”, and include subparts. (Id. at PDF pp. 12-16.)

To justify its objections to RFA nos. 1 through 3, BMW offers the same if not substantially similar general and conclusory arguments regarding what BMW contends is poor “phrasing” and an “expansive nature”, a lack of reasonable particularity in the requests with respect to the particular vehicle at issue in this litigation, and that the information sought is “highly likely” to constitute confidential, proprietary, or trade secret information. (See Opp. Sep. Stmt. [RFA Motion] at PDF pp. 12-14.) As further discussed above, these overly general and conclusory arguments, including with respect to any purported trade secrets, are insufficient to justify the objections of BMW to RFA nos. 1 through 3.

In addition, though the relevance of the subject matter of the requests stated in RFA nos. 1 through 3 is not entirely clear to the Court, the Court notes that the defects alleged in the complaint pertain to the vehicle’s braking system. Therefore, the information sought in RFA nos. 1 through 3 appears to be relevant to the subject matter of this litigation, which, as noted above, “has been construed to be broader than relevancy to issues [citation] and may vary with the size of the case.” (Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1391.) Further, the information sought in these RFA may reasonably assist Moore to evaluate his claims and may lead to admissible evidence. (Gonzalez, supra, 33 Cal.App.4th at p. 1546.) Accordingly, and for all reasons discussed above, the Court will overrule the objections of BMW to RFA nos. 1 through 3, except those objections based on the attorney-client or work product privileges.

In its substantive answer to RFA no. 1, BMW asserts a denial. (Sep. Stmt. [RFA Motion] at PDF p. 12.) In its answers to RFA nos. 2 and 3, BMW states that “[f]ollowing a reasonable inquiry concerning the matter in this particular request, the information known or readily obtainable is insufficient to enable BMW [] to admit or deny this request.” (Id. at PDF pp. 13-14.) The answers of BMW to RFA nos. 1 through 3 substantially comply with the requirements of Code of Civil Procedure sections 2033.220, subdivisions (b) and (c). For this reason, the Court will deny the RFA motion.

 

(5) The FI Motion

The separate statement submitted by Moore in support of the FI motion is procedurally deficient for the same reasons further discussed above. Therefore, and for all reasons further discussed above, the Court will deny the FI motion to the extent it seeks an order overruling the “general objections” of BMW to the FI.

In its response to FI no. 17.1, BMW asserts objections on the grounds of over breadth and undue burden. (Sep. Stmt. [FI Motion] at PDF p. 11.) BMW also objects to FI no. 17.1 to the extent Moore seeks a further response to the RFA on the grounds that BMW has “appropriate responded to each of the RFA”. (Ibid.) The objections of BMW to FI no. 17.1 are without merit for reasons further discussed above. Moreover, BMW’s response is not code compliant as BMW has failed to provide any response to FI no. 17.1 or any of its subparts. Therefore, the Court will grant the FI motion and require BMW to serve a further response to FI no. 17.1 and each of its subparts, without the objections overruled herein except those objections based on the attorney-client or work product privileges.