Judge: Douglas W. Stern, Case: 21STCV42067, Date: 2022-08-15 Tentative Ruling
Case Number: 21STCV42067 Hearing Date: August 15, 2022 Dept: 52
Tentative Ruling:
Plaintiff
Alfred Somekh moves to compel the deposition of defendant’s person(s) most
qualified on nine matters of examination with 12 document requests.
A
party may move to compel a deponent to testify and produce documents if it
failed to do so without having served a valid objection. (CCP § 2025.450(a).) On April 4, 2022, plaintiff served a notice
of defendant Porsche Cars North America, Inc.’s person(s) most qualified. (Galaviz Decl., ¶ 3, Ex. 1.) Defendant responded with numerous objections,
but ultimately agreed to produce a witness on seven of nine matters of
examination and to produce some documents in response to 10 out of 12 document
requests. (Id., Exs. 5-6.)
After
meeting and conferring, defendant agreed “to produce a witness and documents as
stated in the supplemental responses and objections. Specifically, PCNA agrees to produce a
witness on all Matters, except that: (1) PCNA will produce a witness to discuss
Matter No. 8, limited to California vehicles of the same year, make, and model
as the Subject Vehicle and (2) PCNA maintains its objections to Matter No. 9
and will not produce the witness on this Matter.” (Galaviz Decl., Ex. 6.)
Matters of Examination
Defendant’s objections to Matter Nos. 8 and 9 are valid. Matter
No. 8 is: “The number of Defendant’s vehicles reacquired pre-litigation
in California in the last ten years.” No.
9 is: “Total amount of deductions applied to Defendant’s repurchase offers in
California in the last ten years, including but not limited to deductions for
vehicle wear and tear and goodwill payments.”
Though such information may be discoverable or admissible in
other cases (see Oregel v. American Isuzu Motors, Inc. (2001) 90
Cal.App.4th 1094, 1105), defendant offered to repurchase plaintiff
Alfred Somekh’s vehicle in November 2021.
(Galaviz Decl., Ex. 8.) The
willfulness of any violation depends on defendant’s conduct with respect to
plaintiff and his vehicle, including the terms of defendant’s repurchase offer. Indeed, plaintiff’s moving papers argue at
length (based on the evidence he already has) that the repurchase offer was
invalid and constitutes a willful violation.
(Memo., pp. 6-12.) That offer—not
Porsche’s general policies and practices or its conduct in response to other
customers’ repurchase requests—is the central issue in this case.
In contrast with cases where defendant made no repurchase
offer, discovery regarding Porsche’s general policies and practices is far less
likely to lead to admissible evidence in this case. When “taking into account the needs of the
case, the amount in controversy, and the importance of the issues at stake in
the litigation,” these requests are “unduly burdensome.” (CCP § 2019.030(a)(2).)
Requests for Production
In response to
plaintiff’s 12 requests for production, defendant objected to each category and
responded substantively by identifying documents for all categories except Nos.
8 and 9. (Galaviz Decl., Ex. 5, pp.
6-12.)
Defendant’s objections
to Nos. 8 and 9 are valid. No. 8 asks
for “[a]ll documents regarding the number of Defendant's vehicles reacquired
prelitigation in 10 California in the last ten years.” No. 9 asks for “[a]ll documents regarding the
total amount of deductions applied to Defendant’s repurchase offers in
California in the last ten years, including but not limited to deductions for
vehicle wear and tear and goodwill payments.”
The requests mirror matters of examination Nos. 8 and 9. As discussed above with respect to those matters
of examination, these requests are not reasonably calculated to lead to the
discovery of admissible evidence.
Plaintiff fails to set forth specific facts showing good cause to
produce these documents.
For the remaining
categories, plaintiff contends defendant identified documents that were not
responsive and is withholding other responsive documents. Plaintiff fails to present adequate evidence
that defendant has not identified or refuses to produce all responsive
documents. Plaintiff fails to set forth
specific facts showing good cause for defendant to produce additional
documents.
Plaintiff cites Carter v. Superior Court (1990)
218 Cal.App.3d 994 for the following proposition: “That documents had been
previously produced through written discovery does not preclude the same
documents being produced at deposition.”
(Sep. Statement, p. 21.)
Defendant has not refused to produce the same documents again. As defense counsel wrote during the meet and
confer process, defendant agreed “to produce a witness and documents as stated
in the supplemental responses and objections.”
(Galaviz Decl., Ex. 6.)
Disposition
Except for the matters
and requests for production to which defendant made valid objections, defendant
agreed to produce a witness and documents as specified in plaintiff’s notice of
deposition. (Galaviz Decl., Ex. 6.) Defendant therefore did not fail to appear or
produce documents without having served a valid objection. (CCP § 2025.450(a).)
The motion is denied.