Judge: Malcolm Mackey, Case: 20STCV42875, Date: 2023-03-03 Tentative Ruling
Case Number: 20STCV42875 Hearing Date: March 3, 2023 Dept: 55
INCALZA
v. PORSCHE DESIGN STUDIO NORTH AMERICA 20STCV42875
Hearing Date: 3/3/23,
Dept. 55
#6: MOTION TO COMPEL APPEARANCE OF CHRISTIAN
WIEHENBRAUK FOR DEPOSITION AND PRODUCTION OF DOCUMENTS (C.C.P. §§ 2025.450,
2025.480); REQUEST FOR SANCTIONS IN THE AMOUNT OF $5,400.00 AGAINST DEFENDANT
AND ITS COUNSEL OF RECORD.
Notice: Okay
No
Opposition
MP:
Plaintiff
RP:
Summary
On 11/9/20, Plaintiff GIANCARLO INCALZA filed a Complaint.
On 3/22/21, Plaintiff filed a First Amended
Complaint, alleging that defendants wrongfully terminated his employment,
based on age discrimination, and fraudulently induced Plaintiff to sign
a severance agreement, release, and illegal noncompetition agreement
prohibiting work for Porsche, which he did not fully understand due to limited
fluency in English, because of high-level management’s repeatedly stating that
the agreement was drafted to mean that Plaintiff could apply for other jobs at
Porsche, and then defendants actually processed such job applications.
The causes of action are:
(1) RESCISSION;
(2) VIOLATION OF BUSINESS
AND PROFESSIONS CODE § 16600;
(3) FRAUD/DECEIT;
(4) DISCRIMINATION IN
VIOLATION OF FEHA;
(5) FAILURE TO HIRE IN
VIOLATION OF FEHA;
(6) HARASSMENT IN
VIOLATION OF FEHA;
(7) FAILURE TO PREVENT
DISCRIMINATION;
(8) FAILURE TO PRODUCE
PERSONNEL FILE IN VIOLATION OF CALIFORNIA LABOR CODE § 1198.5;
(9) INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS;
(10) NEGLIGENT HIRING,
RETENTION, AND SUPERVISION;
(11) WRONGFUL TERMINATION
IN VIOLATION OF PUBLIC POLICY;
(12) WHISTLE-BLOWER
RETALIATION IN VIOLATION OF LABOR CODE § 1102.5.
MP
Positions
Moving party requests an order compelling Christian
Wiehenbrauk, a party-affiliated witness of defendant Porsche Design of America,
Inc., to attend a deposition, and imposing $5,400 in sanctions, on grounds
including the following:
·
On November 28, 2022, Plaintiff noticed
Wiehenbrauk’s deposition for December 21, 2022.
·
Defendant served boilerplate objections to
the notice, without providing alternate deposition dates.
·
Defendant identified Wiehenbrauk in sworn
discovery responses as being a decision-maker as to Plaintiff’s wrongful
employment termination.
Tentative
Ruling
The unopposed motion is granted, as prayed.
The failure to file a proper and timely opposition in
trial court creates a waiver of the issues on any appeal. Bell v. Am. Title Ins. Co. (1991) 226
Cal. App. 3d 1589, 1602; Cabrini
Villas Homeowners Assn. v. Haghverdian (2003) 111 Cal. App. 4th 683, 693. A judge in a civil case is not
"'obligated to seek out theories [a party] might have advanced, or to
articulate … that which … [a party] has left unspoken.'" Mesecher v.