Judge Elaine W. Mandel, Case Number: 23SMCV05266, Date: 2025-02-26 Tentative Ruling

Judge: Elaine W. Mandel, Case: 23SMCV05266, Date: 2025-02-26 Tentative Ruling

Case Number: 23SMCV05266 Hearing Date: February 26, 2025 Dept: P

Tentative Ruling

Pourdavoud v. Volkswagen, Case no. 23SMCV05266

Hearing date February 26, 2025

Plaintiff’s Omnibus Motion to Compel Further Discovery

Defendant’s Motion for Sanctions Due to Spoilation

Plaintiff Pourdavoud leased a defective vehicle from defendant Volkswagen and moves to compel (1) further responses to plaintiff’s request for production of documents, set two, nos. 1-101, and (2) the deposition of defendant’s person most knowledgeable. Defendant opposes and moves for terminating, issue and/or evidentiary sanctions arising from plaintiff’s alleged spoilation evidence. Plaintiff opposes the motion and offers the declaration of counsel Mahnke. Defendant offers evidentiary objections.

Defendant offers 6 evidentiary objections to Mahnke’s declaration. OVERRULED.

Plaintiff’s Omnibus Motion to Compel Further Discovery

To compel production of documents, moving party must show good cause. Cal. Code Civ. Proc. §2031.310(b)(1). Good cause exists where the requested documents are relevant and needed for effective trial preparation. Assoc. Brewers Dist. Co. v. Superior Court of Los Angeles County (1967) 65 Cal.2d 583; Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98. When a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully respond. Coy v. Superior Crt. (1962) 58 Cal.2d 210, 220-221; Fairmont Ins. Co. v. Superior Crt. (2000) 22 Cal.4th 245, 255.

Plaintiff argues the Song-Beverly Act renders documents pertaining to a plaintiff´s specific repair issues relevant, as well as those pertaining to similar, prior repair issues of other similarly situated vehicle owners. See Ford of N. Am. v. Gore (1996) 517 U.S. 559, 576-77. Request for production of documents, set two, nos. 1-101 seek documents relating to plaintiff’s own vehicle, defendant’s warranty and purchase/repair policies and defendant’s knowledge of other vehicles exhibiting the same alleged defects. Decl. Mahnke para. 17; exh. 3. Plaintiff asserts defendant failed to produce all responsive documents and improperly sought to limit production to plaintiff’s vehicle. Decl. Mahnke para. 18; exh. 4.

Defendant argues plaintiff’s sought production is overbroad and irrelevant to the defects alleged in plaintiff's vehicle. Defendant argues no evidence exists to support plaintiff's request for documents relating to issues in other vehicles. Plaintiff notes one recall notice and one technical service bulletin. Decl. Mahnke paras. 12-13; exh. 2.

Defendant argues the recall is not applicable to plaintiff’s vehicle. Decl. Lewis para. 4; exh. A. Defendant argues the technical bulletin does not constitute knowledge of the alleged defects in plaintiff's vehicle and cannot constitute good cause. Defendant asserts it did not manufacture plaintiff’s vehicle and did not issue the recall or technical bulletin, so plaintiff cannot show good cause for the requested production. Decl. Lewis para. 6. Defendant also asserts plaintiff’s request for production of documents, set two, is substantively duplicative of set one. Decl. Oakes para. 12; exhs. B, F.

Request for production, set two, nos. 1-9 are duplicative of request for production, set one, nos. 1, 13, 15-21. Plaintiff did not file a motion to compel further responses to request for production of documents, set one. Defendant agreed to produce internal technical communications with the dealership that diagnosed the vehicle and a spreadsheet containing similar complaints for similar vehicles purchased/leased in California and similar warranty concerns/repairs. Decl. Oakes paras. 7, 13. These documents are compliant and satisfy the requirements under Ford of N. Am., supra.

Plaintiff moves for leave to additionally depose defendant’s person most knowledgeable. Plaintiff previously deposed defendant’s PMK Palmer on 1/15/25, having stated 87 PMK categories and deposed him for 7.5 hours. Decl. Mahnke para. 22; exh. 6. Plaintiff argues Palmer did not provide testimony concerning matter no. 5, communications between defendant and its authorized repair facilities concerning the vehicle. Decl. Mahnke para. 23; exh. 7. Plaintiff asserts Palmer was not identified as the person most knowledgeable on matter no. 5 at the time of deposition but has since been identified as such, rendering his testimony matter necessary. Id.

Defendant argues there is neither basis nor good cause for a second deposition of Palmer. Defendant argues it did not, and does not, conduct CPO inspections; the matter on which plaintiff seeks additional testimony. Defendant argues Palmer already testified at length, and additional deposition is unnecessary. Decl. Oakes para. 10; exh. E. Plaintiff already deposed Palmer for nearly 8 hours on over 80 designated matters; additional testimony is not appropriate. DENIED.

Defendant’s Motion for Sanctions Due to Spoilation

“California discovery law authorizes a range of penalties for conduct amounting to ‘misuse of the discovery process.’” Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991; Code Civ. Proc. § 2023.030. Such misuse of the discovery process justifies “potent” sanctions. Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12. “Spoliation of evidence means the destruction or significant alteration of evidence or the failure to preserve evidence for another's use in pending or future litigation." Williams v. Russ (2008) 167 Cal.App.4th 1215, 1227.

Defendant sent plaintiff a letter 12/11/23 stating its intent to depose plaintiff and inspect the vehicle. Decl. Oakes para. 5; exh. B. The letter contained a demand for preservation of evidence. Id. Plaintiff did not appear at deposition. Decl. Oakes para. 9; exh. E. Plaintiff was eventually deposed 11/5/24. Decl. Oakes para. 13. Plaintiff returned the vehicle to the leasing retailer September 2024. Decl. Mahne paras. 3, 7; exh. A. Plaintiff did not inform defendant of his intent to return the vehicle nor of the return, despite objecting to defendant’s second demand to inspect the vehicle. Decl. Oakes para. 14; exh. H. Defendant has not inspected the vehicle. Decl. Oakes para. 15.

Defendant argues the vehicle is the key piece of evidence and only by inspecting it can defendant determine whether the vehicle has a defect or nonconformity, and plaintiff deprived it of the opportunity to discover evidence central to its defenses.

Plaintiff argues he had to return the car by September 2024 pursuant to the lease, and defendant delayed in seeking to inspect the vehicle. Decl. Mahne paras. 3, 7; exh. A. This is unavailing; plaintiff failed to appear at his deposition 12/26/23, failed to inform defendant of his intention to return the vehicle prior to doing so, and failed to inform defendant of the return even after defendant served a second demand to inspect the vehicle. Plaintiff failed to preserve material evidence per his obligations under Williams, supra. Sanctions are warranted.

Terminating sanctions are of the strictest variety and should only be employed in the most egregious cases. Plaintiff’s failure to allow defendant to inspect the vehicle is severe but does not rise to the level of terminating sanctions. Evidentiary sanctions are appropriate.

An evidence sanction prohibits a party “from introducing designated matters in evidence.” See Cal. Code Civ. Proc. §2023.030. The jury will be instructed on plaintiff’s spoliation of evidence and what they may infer from plaintiff’s failure to notify defendant of the disposition of the vehicle, that the vehicle was successfully repaired and that the vehicle did not have any substantial, unrepaired defects. See CACI 204. To the extent plaintiff conducted his own forensic inspection, any evidence or testimony about such inspection is excluded at trial. GRANTED in part as above.