Judge: Malcolm Mackey, Case: 20STCV42875, Date: 2023-03-27 Tentative Ruling


Case Number: 20STCV42875    Hearing Date: March 27, 2023    Dept: 55

INCALZA v. PORSCHE DESIGN STUDIO NORTH AMERICA        20STCV42875

Hearing Date:  3/27/23,  Dept. 55

#4:   

MOTION TO COMPEL APPEARANCE OF CHRISTIAN WIEHENBRAUK FOR DEPOSITION AND PRODUCTION OF DOCUMENTS.

MOTION TO COMPEL APPEARANCE OF DR. JAN BECKER FOR DEPOSITION AND PRODUCTION OF DOCUMENTS.

 

Notice:  Okay

Opposition

 

MP:  Plaintiff

RP:  Defendant PORSCHE DESIGN OF AMERICA, INC.

 

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 party-affiliated employee witnesses of Defendant Porsche Design of America, Inc., to attend a deposition, and imposing sanctions, on grounds including the following:

 

·         Plaintiff noticed the depositions.

·         Defendant served boilerplate objections to the notices, without providing alternate deposition dates.

·         Defendant identified deponents in sworn discovery responses as being decision-makers as to Plaintiff’s wrongful employment termination.

·         The oppositions contain waived objections not included in prior objections to deposition notices. CCP   § 2025.410(a).

·         Defendant’s own witnesses in deposition testimony, identified deponents as being employees and officers of Defendant.  CCP § 2025.280(a).

·         Defendant indicated in sworn discovery responses that the deponents only can be contacted via defense counsel, it cannot now legitimately argue that Incalza did not personally serve this motion on the deponents.

·         Incalza expressly brought this motion under both CCP section 2025.450 and 2025.480.

·         Monetary sanctions are mandatory under CCP section 2025.450 absent a showing of substantial justification by the losing party. (CCP § 2025.450(g)(1).)

 

 

 

RP Positions

 

Opposing party advocates denying, for reasons including the following:

 

·         The deponents are not employed by PORSCHE DESIGN OF AMERICA, INC., and it does not exercise any control over them.

·         The motion is defective because it is brought under an inapplicable section of the Code of Civil Procedure, and subpoenas are instead required.

·         The Court lacks authority to compel a non-California resident, non-party’s deposition.

·         Deponents have not party-affiliated deponents who failed to appear for depositions or failed to produce documents.

 

 

Tentative Ruling

 

Both motions are denied, without prejudice to serve any proper deposition subpoenas.

The argued notice-objection waiver is inapposite, because the issue is not just with the notices, but with the procedure used instead of a subpoena process as to a non-affiliated witness who is out-of-state.

Merely being an opposing attorney representing the witnesses does not change the statutory subpoena requirements.

Further, the evidence is in dispute as to whether the deponents are employees or officers of Defendant. 

Sanctions are denied, the Court finding substantial justification.

A treatise summarizes some applicable procedures and law as follows:

Where the witness whose deposition is sought is not a party (or a “party-affiliated” witness), a subpoena must be served to compel his or her attendance, testimony, or production of documents. [CCP §§ 2020.010(b), 2025.280(b); see Terry v. SLICO (2009) 175 CA4th 352, 357, 95 CR3d 900, 903 (citing text)] (CCP § 1985 et seq. dealing with subpoenas generally also apply to deposition subpoenas except as modified by § 2020.010 et seq.; see CCP § 2020.030.)

The clerk of the court in which the action is pending issues the deposition subpoena forms in blank, already signed and sealed. Or, attorneys may prepare and sign their own deposition subpoena forms (without the court's seal). [CCP § 2020.210]

Subject to certain geographical limitations (see ¶ 8:621 ff.), personal service of a deposition subpoena requires a person who is a resident of California to appear, testify and produce whatever documents or things are specified in the subpoena; and also to appear in any proceedings to enforce discovery. [CCP § 2020.220(c)(3)]

The original subpoena and proof of service are retained by the subpoenaing party. They are not filed with the court unless relevant to a motion to compel. [CRC 3.250(a)(1)]

¿ [8:536] PRACTICE POINTER: It is risky to rely on a nonparty witness' promise to appear voluntarily, without subpoena. If he or she fails to appear for any reason, the court may impose a monetary sanction against the party noticing the deposition to reimburse other parties for their expenses, including attorney fees, in showing up for the aborted deposition (see CCP § 2025.440(a), ¶ 8:832).

This applies even as to “friendly” witnesses. You may want to explain in advance the necessity for serving the deposition subpoena; but follow up with service in any event.

One caveat is where the witness lives beyond the court's subpoena power (e.g., in another state). In such a case, you'd have to obtain a subpoena from a court where the witness resides, and this may be complex and costly (requiring filing of some sort of proceedings in the other state; see ¶ 8:636 ff.). Therefore, you may want to weigh the risk of the witness' breaking a promise to appear voluntarily against the costs you're likely to incur if the witness does not appear.

 

SUBPOENA to Nonparty Deponent or Business Records Custodian:, Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group 2022)  § 8:535 et seq.

 

The subpoena process differs, beyond just the notice contents.  See generally, id., at Section 8:597et seq Where evidence is in dispute, trial courts may resolve the conflicts either way and the decision will be upheld if there is substantial evidence to support a trial court's finding.  Costco Wholesale Corp. v. Sup. Ct. (2009) 47 Cal.4th 725, 733;  Shadow Traffic Network v.  Sup.  Ct.  (1994) 24 Cal.App.4th 1067, 1082;  Van de Kamp v. Bank of America  (1988) 204 Cal.App.3d 819, 842.Generally, monetary sanctions are mandatory as to parties losing discovery motions, unless courts find substantial justification or other injustice.  E.g.,  Foothill Properties v. Lyon/Copley Corona Assocs., L.P. (1996) 46 Cal.App.4th 1542, 1557-58.  “ ‘[S]ubstantial justification” has been understood to mean that a justification is clearly reasonable because it is well-grounded in both law and fact.”  Doe v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434.

*IF BOTH PARTIES WOULD LIKE TO SUBMIT ON THE TENTATIVE RULING, PLEASE CALL 213-633-0655*