Judge: Christopher K. Lui, Case: 24STCV21436, Date: 2024-12-19 Tentative Ruling

Case Number: 24STCV21436    Hearing Date: December 19, 2024    Dept: 76

The following tentative ruling is issued pursuant to Rule of Court 3.1308 at 1:20 PM on December 18, 2024. 

Notice of intent to appear is REQUIRED pursuant to California Rule of Court 3.1308(a)(1).  The Court does not desire oral argument on the motion addressed herein. 

As required by Rule 3.1308(a)(1), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 by 4:00 p.m. on December 18, 2024.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, oral argument will not be permitted.

            This is a Lemon Law action.

            Plaintiff Daniel Korda moves to compel the deposition of Defendant’s person most knowledgeable.

TENTATIVE RULING

            Plaintiff Daniel Korda’s motion to compel the deposition of Defendant Volkswagen Group of America, Inc.’s person most knowledgeable is GRANTED as to Categories Nos. 1 – 15, with No. 4 being GRANTED IN PART as set forth below. The motion to compel production of documents is GRANTED as to Requests Nos. 1 – 10, with No. 6 being GRANTED IN PART as set forth below, and is DENIED as to Request No. 11.

            The parties are to meet and confer as to the February deposition date.

            No sanctions were requested.

Motion To Compel Deposition With Production of Documents

Plaintiff Daniel Korda moves to compel the deposition of Defendant’s person most knowledgeable.

            Civ. Proc. Code § 2025.450 provides in pertinent part:

(a) 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[1], 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.

(b) A motion under subdivision (a) shall comply with both of the following:

 (1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

 (2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.

. . .

(g) 

 (1) If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
. . .

     (Code Civ. Proc., § 2025.450(a), (b), (g)[bold emphasis added].)

            Relating to this action, following Plaintiff’s October 10, 2024 service of notice of Defendant’s October 23, 2024 PMK deposition, Defendant served objections on October 17, 2024. (Quinn Decl., ¶¶ 5 – 6.) Plaintiff’s counsel engaged in sufficient meet and confer efforts with Defendant’s counsel, but the parties were unable to reach agreement on a deposition date, although dates in mid-February were offered by Defendant’s counsel. (Quin Decl., ¶¶ 7 – 12.) The parties were unable to reach an agreement as to the terms of a PMK deposition. (Id. at ¶¶ 12, 13.) Plaintiff’s counsel indicates that Defendant will not produce a PMK witness within a reasonable date range to discuss all categories with production of all responsive documents. (Id., ¶ 16.)

            Civ. Proc. Code, § 2025.280(a) provides:

(a) The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.

(Code Civ. Proc., § 2025.280(a)[bold emphasis added].)

       Civ. Proc. Code, § 2025.230 provides:

If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.

     (Code Civ. Proc., § 2025.230 [bold emphasis and underlining added].)

            Defendant is required to designate and produce a PMK on the 15 noticed deposition topics, absent having obtained a protective order pursuant to Civ. Proc. Code, § 2025.420[2] that a PMK need not be produced on certain topics.

            On October 17, 2024, Defendant served Objections to the Notice of Deposition of the person most knowledgeable for Volkswagen Group of America, Inc. (Quinn Decl., Exh. 2.) However, serving written objections, even if valid objections for failure to comply with Civ. Proc. Code, § 2025.210 et seq., does not stay the deposition or excuse attendance. If such objections are determined by the Court to be valid, this merely precludes using the deposition testimony as evidence pursuant to Civ. Proc. Code, § 2025.620.

(a) Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.

(b) If an objection is made three calendar days before the deposition date, the objecting party shall make personal service of that objection pursuant to Section 1011 on the party who gave notice of the deposition. Any deposition taken after the service of a written objection shall not be used against the objecting party under Section 2025.620 if the party did not attend the deposition and if the court determines that the objection was a valid one.

(c) In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. The taking of the deposition is stayed pending the determination of this motion.

(Code Civ. Proc., § 2025.410 [bold emphasis and underlining added].)

            The Court will address the objections asserted by Defendant as to each Category and Request for Production as set forth in the Separate Statement:

¿        Categories Nos. 1, 2, 3, 5, 6, 9, 10, 11, 12, 13, 14, 15 : GRANTED.

            Defendant’s objections are OVERRULED as none justify refusal to produce a PMK to testify as to repairs, recalls, documents and warranties pertinent to the subject vehicle, such as would reveal Defendant’s knowledge of the recurring issues and the ability or cost to fix it. These categories do not require expert testimony, but rather percipient witness testimony as to the history of the subject vehicle and relevant known issues that may have affected the subject vehicle. Objections on the ground of privilege may be asserted at the deposition.

¿        Category No. 4 : GRANTED IN PART.

            Defendant’s objection on the ground of overbreadth is SUSTAINED. The category will be limited to Technical Service Bulletins applicable to the subject vehicle. Objections on the ground of privilege may be asserted at the deposition.

¿        Categories Nos. 7, 8: GRANTED.

Defendant’s objections are OVERRULED as none justify refusal to produce a PMK to testify as to why Defendant decided not to repurchase Plaintiff’s vehicle. Objections on the ground of privilege may be asserted at the deposition.

¿        Requests For Production of Documents Nos. 1, 2: GRANT.

            In the separate statement, Plaintiff has made a fact-specific showing of good cause for the documents requested. (Civ. Proc. Code § 2025.450(b)(1).)

            Defendant’s objections are OVERRULED as inapplicable.

¿        Requests For Production of Documents Nos. 3, 4: GRANT.

            In the separate statement, Plaintiff has made a fact-specific showing of good cause for the documents requested. (Civ. Proc. Code § 2025.450(b)(1).) Defendant knows whether a TSB or recall applies to the subject vehicle, whereas Plaintiff may not have the technical expertise to make such determination.

The objections are OVERRULED. Indeed, there is no indication that all applicable TSBs cannot be located and retrieved with an electronic search. Defendant has not demonstrated that any privileges would apply to these documents. “[I]t is the burden of the objecting party to support the applicability of a particular privilege.” (Denari v. Superior Court (1989) 215 Cal.App.3d 1488, 1494.)

¿        Requests For Production of Documents Nos. 5, 6 (in part): GRANT.

            As to Request No. 6, it will be limited to the documents pertinent to the subject vehicle only.

            In the separate statement, Plaintiff has made a fact-specific showing of good cause for the documents requested. (Civ. Proc. Code § 2025.450(b)(1).)

            Defendant’s objection on the ground of attorney-client privilege and attorney work-produce doctrine is SUSTAINED to the extent that such privileged information is responsive. Defendant is to produce a privilege log identifying which documents were withheld, and on what basis. All other objections are OVERRULED as not justified.

¿        Requests For Production of Documents Nos. 7, 8: GRANT.

In the separate statement, Plaintiff has made a fact-specific showing of good cause for the documents requested. (Civ. Proc. Code § 2025.450(b)(1).)

            Defendant’s objections are OVERRULED as not justified.

¿        Requests For Production of Documents Nos. 9, 10: GRANT.

In the separate statement, Plaintiff has made a fact-specific showing of good cause for the documents requested. (Civ. Proc. Code § 2025.450(b)(1).)

Defendant’s objection on the ground of attorney-client privilege and attorney work-produce doctrine is SUSTAINED to the extent that such privileged information is responsive. Defendant is to produce a privilege log identifying which documents were withheld, and on what basis. All other objections are OVERRULED as not justified.

¿        Request For Production of Documents No. 11: DENY.

            Plaintiff’s offered good cause in the separate statement is not persuasive as to the detailed information sought. There is no explanation as to how the details sought will tend in reason to prove or disprove a disputed fact of consequence or lead to other evidence which will do so.

“Although the scope of civil discovery is broad, it is not limitless.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223 [61 Cal. Rptr. 2d 567].) Discovery devices must “be used as tools to facilitate litigation rather than as weapons to wage litigation.” (Id. at p. 221.) A party seeking to compel discovery must therefore “set forth specific facts showing good cause justifying the discovery sought.” (§ 2031.310, subd. (b)(1); see Calcor Space Facility, Inc. v. Superior Court, supra, 53 Cal.App.4th at p. 223.)  To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.

(Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224 (bold emphasis and underlining added), overruled on other grounds in Williams v. Superior Court (2017) 3 Cal.5th 531, 557, n. 8.)

            Defendant’s objection on the ground of burden is SUSTAINED. The burden of locating all of the information sought outweighs the information to be gained from this category.

            No sanctions were requested.

            The parties are to meet and confer as to the February deposition date.