Erik A Hennings vs BMW of North America LLC et al
Case No: 17CV02351
Hearing Date: Fri Jun 07, 2019 9:30

Nature of Proceedings: Motion: Compel Further Discovery Responses/Sanctions

TENTATIVE RULING: For the reasons articulated below, the motion is denied in its entirety.

Background: This is a lemon law action, in which plaintiff alleges that he purchased a new 2013 BMW 328i from BMW Santa Barbara on August 2, 2013. His complaint, filed May 30, 2017, names as defendants BMW of North America, LLC (BMW NA) and GMG Motors, Inc., d.b.a. BMW of San Diego. It alleges that the vehicle was delivered to him “with serious defects and nonconformities to warranty, including, but not limited to, one or more faulty Takata airbags.” The complaint alleges a long history of the Takata company’s manufacture of automotive safety devices, including airbags, and the company’s early knowledge that its use of ammonium nitrate to inflate the airbags would cause the airbags to inflate so fast as to produce explosive results. The history includes allegations regarding industry knowledge of the defective airbags, and the recall announced by the NHTSA in June 2014, and that ultimately 14 million vehicles with Takata airbags were recalled worldwide.

Plaintiff does not allege he was injured by a Takata airbag. Rather, he claims that the fact that his vehicle contained such an airbag diminished its value, and he received a vehicle that was of a lesser standard, grade, and quality than was represented, and he paid more than he would have had the defect been disclosed. The recalls resulted in a worldwide shortage of replacement airbags. Plaintiff alleges that he was not put on notice of the defect until the news media began reporting on the airbags after the 2014 recall.

Plaintiff’s first cause of action for violation of the Song-Beverly Act asserts that he purchased a vehicle which was not of the same quality as those generally acceptable in the trade, not fit for the ordinary purpose for which such goods are used, did not measure up to the promises or facts stated on the label, and contained an inherent defect, solely because it was equipped with Takata airbags, and that he is entitled to revoke his acceptance of the vehicle and rescind the purchase contract. The second cause of action for violation of the Song-Beverly Act section 1793.2 alleges that he took the vehicle to BMW of San Diego on January 20, 2017, for replacement of the defective airbags, but more than 30 days elapsed and the vehicle had not been tendered back to him in conformance with its warranties, because BMW NA failed to properly obtain replacement airbags in a timely manner. Again, the claim revokes his acceptance of the vehicle, rescinds the purchase contract, and claims he is entitled to replacement or reimbursement. The complaint also alleges causes of action for fraudulent inducement (through both concealment and through intentional misrepresentation), alleging that had he known the truth he would not have purchased the vehicle. Finally he alleges negligent repair against BMW of San Diego, contending it breached its duty by failing to properly store, prepare and repair the vehicle.

In pursuing this action, plaintiff propounded requests for production upon BMW NA, seeking 77 broad categories of documents related to 2013 BMW 328i vehicles. At issue in the current motion to compel are requests seeking (1) all documents relating to vehicle repurchases made of 2013 BMW 328i vehicles that contained a Takata airbag (#37), that allegedly contain conditions, defects, or nonconformities regarding injury from airbag(s) (#40), that allegedly contain conditions, defects, or nonconformities regarding “engine concerns,” (#43), and that allegedly contain conditions, defects, or nonconformities regarding low oil pressure warning lights. (#46); (2) all documents relating to owner complaints regarding injury from airbag(s) (#38), regarding “engine concerns” (#41), or regarding low oil pressure warning lights, and (3) all documents regarding owner reports of engine concerns (#42).

BMW NA objected to these requests on multiple grounds, including that they are vague, ambiguous, overly broad, seek documents not relevant or reasonably calculated to lead to the discovery of admissible evidence, lacks the specificity required by Code of Civil Procedure section 2031.030(c)(1), violates privacy rights of third party consumers, and is not proportional to the needs of this single vehicle case. With respect to Nos. 40-46, the response added that the documents are protected by attorney-client and attorney work product privileges. With respect to Nos. 38, 41, and 44, the response added that the information requested is available, if it exists at all, through public records requests to NHTSA, and the costs to acquire them are the same for plaintiff as for BMW. With respect to No. 38, the response added that there were no known U.S. ruptures of Takata airbags in BMW vehicles sold to consumers prior to 2013, when plaintiff acquired his vehicle.

After meet and confer efforts did not resolve the dispute, plaintiff filed the current motion to compel further responses, and for $2,310 in sanctions. Plaintiff contends that documents related to other consumers’ complaints regarding the defective airbags are relevant to his Song-Beverly Act claim, and may tend to show when BMW was made aware of the defective airbags in the vehicles, and whether the work they directed could repair the problems with plaintiff’s vehicle during the warranty period. Plaintiff contends further the information is relevant to proving defendant’s willful violation of the act, the awarding of civil penalties, and to prove its fraudulent inducement, since a civil defendant’s recidivism is pertinent to an assessment of culpability. How similar airbag replacements and concerns were handled will be indicative of defendant’s internal policies that evaded its obligations under the act. Its broad treatment and handling of other similar repurchases “and injuries” caused by airbags are relevant to prove its knowledge of widespread defects and non-conformities. Plaintiff asserts that the objections improperly failed to identify with particularity any of the documents to which the objections applied, and contends the requests are not so overbroad as to cause unjustified burden. Finally, plaintiff contends sanctions are appropriate.

Defendants opposed the motion, first contending that it should be denied—or at least decision on it deferred—on federal preemption grounds. Defendants have filed a motion for summary judgment, which is set for hearing on July 12, 2019, which asserts that plaintiff’s claims are preempted by federal law, since federal oversight by the National Highway Traffic Safety Administration over the recall, which establishes a phased completion schedule for replacement of Takata airbags, preempts state lemon law actions based thereon. Plaintiff’s counsel have filed identical cases alleging that vehicles are defective based solely on the presence of a Takata airbag, and several courts have already granted summary judgment to BMW on preemption grounds.

Defendants further assert that plaintiff has failed to set forth specific facts showing good cause for discovery, as required to compel production. Further, the requests are disproportionate to the needs of this case, which involves only a single vehicle, and the total amount in controversy does not exceed 5 figures. The discovery requested is far beyond the needs of the case and that amount in controversy. Plaintiff seeks documents regarding injury from airbags, but there is no such claim in this action. Further, there are no allegations of engine concerns or oil pressure warning lights. The issue for civil penalties is whether the manufacturer willfully failed to comply with its obligations as to plaintiff’s vehicle, not what has been done with respect to a particular model of vehicle. Defendant further asserts plaintiff’s authorities do not support any right to the discovery at issue. Defendant asserts that the court should not compel the invasion of BMW NA’s other customers’ privacy. Finally, BMW NA asserts that the request for sanctions against it is not justified.

In his reply, plaintiff again asserts that the nine discovery requests are crucial to prepare for trial, and that under California law, evidence of the same or similar complaints by other vehicle owners may be relevant to proving the existence of a manufacturing defect. He further contends that BMW’s behavior when dealing with the complaints may support a finding that its conduct was willful and fraudulent. Plaintiff chastises defendants for mentioning other trial court decisions, and characterizes defendants’ request to defer decision pending determination of its MSJ on preemption grounds as an attempt to stay crucial discovery in the absence of a protective order. Plaintiff argues that it has set forth specific facts showing good cause, and contends his requests are “highly relevant” to this Song-Beverly Act claims. Information on other 2013 328i vehicles is discoverable, since defendant’s actions as manufacturer are relevant, and the information can show that the “problems exhibited by the Subject Vehicle” were widespread and that defendant had knowledge of them. Plaintiff argues that his request are specific and narrowly tailored, and contends defendant has exaggerated the broadness of his requests, and exaggerated the burden and expense of responding. Plaintiff disputes that his requests would violate consumer’s privacy rights, and notes he is willing to accept documents from which confidential contact information has been redacted.

ANALYSIS: The motion is denied in its entirety.

This action relates solely to plaintiff’s purchase of a vehicle in 2013, and his attempts to rescind that purchase in 2017, purportedly because he was not aware when he purchased it that it contained a Takata airbag. He contends that the fact that it contained a Takata airbag diminished its value and caused him not to get what he paid for, that he would not have purchased the vehicle had he known it contained a Takata airbag, and that the airbag was not replaced by BMW quickly enough. The complaint makes no allegations of repeated visits to the dealer for attempted repair of any single defect, and only complains that the dealer was not able to replace the Takata airbag pursuant to the recall within 30 days of when he presented it to the dealer. The complaint is not a class action in any respect, and contains no representative allegations. It is also not a personal injury suit, and plaintiff makes no claim that he suffered injury from any malfunction of an airbag. His complaint makes no allegations of defect other than the presence of a Takata airbag in the vehicle.

A motion to compel further responses to a request for production of documents must be accompanied by a declaration showing a reasonable and good faith attempt to resolve the issues outside of court. (Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2).) Further, the motion must set forth specific facts showing good cause justifying the discovery sought by the demand. (Code Civ. Proc., § 2031.310, subd. (b)(1).) To establish good cause, the moving party must show both relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case), and specific facts justifying discovery.

If good cause is shown, the burden then shifts to the responding party to justify its objection. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

The motion is denied outright with respect to Request No. 38, which was never made a subject of plaintiff’s meet and confer efforts. (The Court notes that while the e-mails transmitting meet and confer letters were attached to counsel’s declaration in support of the motion, the actual letters were not; the Court was only able to evaluate the meet and confer letters upon review of the opposition papers, into which they were incorporated.) The actual meet and confer letters sent to defense counsel by plaintiff referenced only Request for Production Nos. 33, 37, and 40-46. The motion, on the other hand, seeks to compel further responses to Nos. 37-38, and 40-46. Since no meet and confer efforts occurred with respect to Request No. 38, there is no basis for a motion to compel further responses to that request.

With respect to the remaining requests that are the subject of the motion to compel (i.e., Request Nos. 37 and 40-46), the Court agrees with BMW NA that plaintiff has failed to articulate specific facts showing good cause for production of the requested documents. Certainly, plaintiff articulates that evidence of the same or similar complaints by other vehicle owners may be relevant to prove both the manufacturing defect and whether defendant’s conduct rises to the level of a willful violation of the Act, or intentional deceit. The Court has no problem with that statement as a general principle. However, plaintiff provides no specific facts to explain how or why the specific categories of documents which are actually sought by the demands have any bearing on this case, i.e., how or why the “defects” or “complaints” that are set forth in most of its requests are relevant in any way to his claims or could possibly lead to the discovery of admissible evidence, or why he needs documents responsive to grossly over-broad request categories.

As an example of gross overbreadth, Request No. 37 seeks all documents evidencing, describing, or tracking vehicle repurchases of 2013 BMW 328i vehicles that “contained” a Takata airbag. Under the express terms of the request, any vehicle which was repurchased which contained an airbag necessarily falls within the terms of the demand, regardless of the reason for the repurchase, i.e., regardless of whether the repurchase was related to the Takata airbag. That would include every 2013 328i vehicle repurchased, worldwide, for any reason whatsoever, if the vehicle happened to also contain a Takata airbag. Absolutely no justification has been provided for serving such a grossly over-inclusive request.

Similarly, there are no allegations in this case that plaintiff sustained any personal injury because of the airbag in his vehicle, and absolutely no specific facts have been articulated by plaintiff that would justify or establish good cause for production of documents related to either complaints or repurchases related to airbag-caused injuries (curiously, unlike #37, which specifically referred to Takata airbags, Nos. 38 and 40 did not, and simply requested documents or complaints with respect to “airbag”-caused injuries.)

Further, the production demand seeks documents related to complaints of “engine concerns” (#42), reports of “engine concerns” (#42), and repurchases of vehicles regarding “engine concerns” (43). “Engine concerns” is so vague as to render these categories meaningless, and inclusive of the vast majority of any complaints, reports, or repurchases of 2013 328i vehicles for any reason whatsoever. Absolutely no specific facts have been articulated by plaintiff to establish good cause for production of so vastly vague, overbroad, and patently inappropriate categories of documents. Further, the complaint makes no allegations with respect to any defect other than the simple fact that the car contained a Takata airbag, and plaintiff has failed to provide this Court with any evidence that he is contending that anything other than the status of the car as containing a Takata airbag is a proper subject of this action. “Engine concerns” have no relevance whatsoever to the existence of a Takata airbag in the vehicle, and there would be no tendency in fact or law for any records related to “engine concerns” to be relevant in any way to any issue plaintiff seeks to prove in this action, or even to lead to the discovery of admissible evidence in some round-about way.

Finally, there has been absolutely no showing of good cause to compel production of any records related to “low oil pressure warning lights.” (Nos. 44-46) Again, no specific facts have been articulated for production of these categories of documents. The complaint contains no allegations with respect to any claimed defect with respect to “low oil pressure warning lights” that defendant either was unable to correct in a manner that violated the Song-Beverly Act, or that in any way formed the basis for plaintiff’s fraud-based claims. Neither has plaintiff provided this Court with any evidence that he is contending that anything other than the status of the car as containing a Takata airbag is a proper subject of the action. There has been no evidentiary showing that “low oil pressure warning lights” have any relevance to this action, or that documents related to them would be relevant in any way to any issue plaintiff seeks to prove in this action.

Plaintiff’s reply contention that he presented the vehicle once for repair of a low oil pressure warning light concern, that this repair attempt would count toward the requirement that the manufacturer’s repair facility be given more than one opportunity to repair the vehicle, and that he need not show that each repair attempt was linked to the same problem but only that the vehicle had a total of more than one repair attempts, is unsupported by the authority he cites. Rather, in Jiagbogu v. Mercedes-Benz USA (2004) 118 Cal.Appa.4th 1235, 1239, the vehicle was presented numerous times for both acceleration issues in the engine and operational malfunctions in the trunk, although not necessarily for the same defect with each presentation. The case does not in any way stand for the proposition that a single presentation of the vehicle for a single repair attempt of a single defect suffices to meet the requirement that the facility be given more than one opportunity to repair the vehicle, so long as there was at least one other presentation for one other repair attempt of one other defect.

To the extent that plaintiff is truly, in good faith, attempting to seek evidence relevant to his action or calculated to lead to the discovery of admissible evidence, the discovery requests at issue in this motion were very poorly crafted, and the motion itself failed to meet its burden of showing good cause for production of the documents responsive to the demands which are at issue. In order to obtain the information truly needed by plaintiff in this action, demands should be propounded which are drafted with much greater care to ensure they are not fatally defective—as the current demands are—and to the extent defendant objects to future, more carefully-crafted demands, plaintiff should also be prepared to make an appropriate showing of good cause for production in any future motion to compel.

To the extent that the demands at issue in this complaint in fact accurately describe the information which plaintiff is truly seeking, the discovery has not been propounded in good faith. Indeed, the demands appear to have been drafted to seek documents relevant to another existing or contemplated future case, on behalf of this or another existing or contemplated plaintiff, and do not give any appearance of seeking documents relevant to or directed toward this action, by this plaintiff.

As a result, the Court will deny the motion to compel in its entirety, including the request for sanctions. Because the motion has failed to meet the burden of showing good cause for production, the Court need not address the specific objections interposed to the discovery, including the preemption issue.