Judge: Peter A. Hernandez, Case: 22STCV22829, Date: 2023-08-22 Tentative Ruling

Case Number: 22STCV22829    Hearing Date: April 10, 2024    Dept: K

Plaintiffs Mark Karghaian’s and Natalie Payaslyan’s Motion to Compel Deposition of Defendants Polaris Industries, Inc. (MN) & Polaris Sales, Inc. is DENIED in part (i.e., as to Category No. 2 and Requests Nos. 2 and 3) and otherwise GRANTED, with limitations [see below].

Background 

Case No. 22STCV22829

Plaintiffs Mark Karghaian and Natalie Payaslyan (together, “Plaintiffs”) allege as follows:

On April 24, 2022, Plaintiffs were passengers in the front passenger seat and rear seat, respectively, in a 2020 Polaris RZR XP1000 (i.e., an offroad UTV) (“subject vehicle”). Plaintiffs sustained severe injuries after the subject vehicle rolled.

On July 15, 2022, Plaintiffs filed a complaint, asserting causes of action against Polaris Industries, Inc., Polaris Sales, Inc., Polaris Industries, Inc. (n/k/a Polaris Inc.), Saba Enterprises, Inc. dba Corona Motorsports (“Saba”) and Does 1-100 for:

1.                  Strict Products Liability

2.                  Negligence

3.                  Failure to Warn

4.                  Negligent Recall

On July 7, 2023, the case was ordered reassigned from Department 31 of the Personal Injury Court to Department O. On July 17, 2023, the case was reassigned to the instant department.

On August 24, 2023, Polaris Industries Inc. (MN) n/k/a Polaris Inc. (DE), Polaris Sales Inc. MN and Polaris Industries Inc. (DE) filed a cross-complaint, asserting causes of action against Daniel Payaslyan (“D. Payaslyan”) for:

1.                  Indemnification

2.                  Apportionment of Fault

3.                  Negligence

On September 21, 2023, the court related Case Nos. 22STCV22829 and 22STCV31967; Case No. 22STCV22829 was designated as the lead case.

A Case Management Conference is set for April 10, 2024.

The Final Status Conference is set for September 10, 2024. Trial is set for September 24, 2024.

Discussion

Plaintiffs move the court for an order that:

A.                Polaris be compelled to produce for deposition their Person(s) Most Knowledgeable (“PMK”) regarding:

1.                  Complaints pertaining to rollover accidents in Polaris UTVs;

2.                  The identity of individuals involved in the accidents resulting in complaints pertaining to rollover accidents in Polaris UTVs;

3.                  The number of left arm injuries/amputations of individuals involved in the driver side leaning rollovers resulting in complaints pertaining to rollovers in Polaris UTVs;

4.                  The number of right arm injuries/amputations of individuals involved in passenger side leaning rollovers resulting in complaints pertaining to rollovers in Polaris UTVs; and

5.                  Any efforts by Polaris to analyze the correlation between right arm injuries in Passenger side leading rollovers with left arm injuries in driver side leaning rollovers and any attempt to mitigate such injuries.

B.                 Polaris be compelled, within 3 business days prior to the deposition, to provide documents and responses to the document production demands in the notice of deposition[1] and to produce a privilege log for any documents withheld on the basis of privilege; and that

C.                 All objections to the deposition be overruled.

At the outset, the court on February 7, 2024 noted that none of the exhibits referenced in the Declaration of John P. Kristensen (“Kristensen”) accompanying the motion were, in fact, attached and requested that Plaintiffs’ counsel re-file and serve Kristensen’s declaration with Exhibits 1-6 forthwith. On February 20, 2024, Plaintiffs filed (email-served February 19, 2024) a 90-page “Amended Notice of Notice of Deposition of Defendants Polaris Industries, Inc. (MN) & Polaris Sales, Inc.; Demand for Production of Documents; Declaration of John P. Christensen.” The court will consider the foregoing filing only with respect to Kristensen’s declaration and Exhibits 1-6 attached thereto.

Request for Judicial Notice

The court rules on Polaris’ Request for Judicial Notice as follows: Denied as to Exhibit 1 (i.e., summary of tentative rulings in styled Moretta v. Polaris Industries Inc., et al., Case No. 19STCV28761 (Cal. Super. Ct. Los Angeles Cnty, Aug. 19, 2020) [“Moretta”]) and Denied as to Exhibit 2 (i.e., August 19, 2020 minute order in Moretta).

Merits

Kristensen represents, and/or the accompanying exhibits reflect, as follows:

On October 18, 2022, Plaintiffs served a “Notice of Deposition of Defendants Polaris Industries, Inc. (MN) & Polaris Sales, Inc.; Demand for Production of Documents,” setting the deposition for October 31, 2022. (Kristensen Decl., ¶ 4, Exh. 3.) On October 27, 2022, Polaris served objections thereto. (Id., ¶ 5, Exh. 4.) On March 13, 2023, Kristensen sent a letter to Polaris’ counsel. (Id., ¶ 6, Exh. 5.) Polaris’ counsel Hyongsoon Kim (“Kim”) provided a response thereto on March 24, 2023. (Id., ¶ 7, Exh. 6.) Counsel thereafter telephonically met and conferred on April 13, 2023 but were unable to resolve their dispute. (Id., ¶¶ 8 and 9). Since April 13, 2023, counsel have participated in ongoing meet and confer efforts both telephonically and via email. (Id., ¶ 11).

The instant motion followed on June 7, 2023.

The court considers Polaris’ contention that the instant motion is untimely pursuant to the sixty-day deadline set forth in Code of Civil Procedure § 2025.480, subdivision (b).[2] Plaintiff argues that Polaris’ reliance on Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, Board of Registered Nursing v. Superior Court of Orange County (2021) 59 Cal.App.5th 1011 and Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164 is misplaced, because those cases considered the 60-day deadline in the context of a deposition subpoena for business records, rather than a notice of deposition which is involved here. The court agrees. Additionally, the court notes that counsel continued to meet and confer regarding other specific instances (“OSIs”) well after the expiration of any purported deadline. (Kristensen Decl., ¶¶ 6 and 7, Exhs. 5 and 6; Baker Decl., ¶¶ 7-12, Exhs. E-I). The court, then, will proceed to review the merits of the motion.

In the instant case, Plaintiffs allege that on April 24, 2022, they were passengers in a 2020 Polaris RZR XP1000[3] designed, manufactured and distributed by Polaris that was operating “at a foreseeable speed (approximately 15 miles per hours)” when the subject vehicle “underwent a passenger side leading roll” (Complaint, ¶¶ 2 and 3). Plaintiffs allege that as a result of the rollover, Karghaian (the front passenger) “suffered severe injuries to his right arm” while Payaslyan (the rear passenger) “suffer[ed] less severe injuries.” (Id., ¶ 3). Plaintiffs allege that Polaris “designed and manufactured the various components of the ‘rollover protection system’” (“ROPS”) and that the ROPS “failed to keep Plaintiff within the vehicle.” (Complaint, ¶¶ 20 and 22).

Plaintiffs argue that they are entitled to discovery pertaining to other rollover accidents involving Polaris UTV vehicles with ROPS pursuant to Ault v. Int’l Harvester Co. (1974) 13 Cal.3d 113 and Elsworth v. Beech Aircraft Corp. (1984) 37 Cal.3d 540. Indeed, “[e]vidence of other accidents is admissible to prove a defective condition, knowledge, or the cause of an accident, provided that the circumstances of the other accidents are similar and not too remote.” (Ault, supra, 13 Cal.3d at 121-122 [emphasis added].)

Here, however, the categories and requests in the deposition notice seek information related to any Polaris UTV. “Although the scope of civil discovery if broad, it is not limitless. . . matters are subject to discover if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. The burden rests upon the party seeking the discovery to provide evidence from which the court may determine these conditions are met.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4^th 216, 223 [internal quotations and citation omitted.)

Plaintiffs do not tailor their categories or requests to a specific vehicle, model, model year, time, or component/system at issue. Aaron Deckard (“Deckard”), a Senior Staff Engineer at Polaris Industries Inc., explains that even if Plaintiff’s requests were limited only to Polaris’s Ranger and RZR lines, this would encompass 1,410 different Polaris Ranger models and options dating back to 1999 and 853 Polaris RZR models and options dating back to 2008. (Deckard Decl., ¶¶ 5 and 27). While Plaintiff argues that Elsworth, supra, 37 Cal.3d 540 rejected an argument that “evidence of other similar accidents was impermissible because the model aircrafts were different” (Motion, 4:13-14), the evidence in Elsworth, in fact, showed that the models had the “same design defect” which “produce[d] identical engine stall/spin characteristics.” (Id. at 555.)

Plaintiff has not provided the court with any evidence of any similarities between the subject vehicle and the other lines or models with respect to their design, materials, or ROPS; rather, the only justification Plaintiff has offered is that all of the vehicles have a ROPS. Deckard, though, explains that there are six different ROPS designs across the RZR models (Id., ¶ 9), that the cab frame and occupant retention systems (which consist of the seat belt, the hand hold, the ROPS, the seat design and the hip bolster) on RZR vehicles have evolved over time (Id., ¶ 11), that beginning with the 2014 model year Polaris re-designed the RZR line with the introduction of a new platform known as the “Next” platform which, in 2015, introduced the “c-pillar” to the ROPS system that operates differently from prior RZR ROPS in order to support specific weight, stability limits, and handling characteristics for that particular platform (Id., ¶ 12), that beginning with the 2016 model year, Polaris again re-designed the RZR line with the introduction of a new platform known as the “Champ” platform which includes the subject vehicle (Id., ¶ 13), that the ROPS on the subject vehicle is substantially different from the ROPS on RZR models built on platforms that pre-date the Next and Champ platforms and youth RZR models (Id.), and that the work-oriented Ranger line is designed to be suitable for off-road use in a wide variety of utility applications rather than for recreational use (i.e., like the RZR) and thus is an entirely different vehicle from RZR vehicles in terms of design specifications, ride, handling and performance (Id., ¶¶ 25 and 26).

Additionally, although Plaintiffs contends that Karghaian suffered injuries to his right arm and that Payaslyan “suffer[ed] less severe injuries.” when the subject vehicle rolled onto the passenger side, Plaintiffs seek categories of testimony and documents relating to other types of accidents and injuries that are unrelated to the alleged circumstances herein.

Plaintiffs also seek every document exchanged between Polaris and either the Consumer Product Safety Commission (“CPSC”) or Recreational Off-Highway Vehicle Association (“ROHVA”) related to rollovers in any UTVs manufactured by any company at any time (i.e., Requests Nos. 2 and 3). Plaintiffs, however, have not provided the court with good cause for seeking these records. There are no specific facts regarding the documents sought, the requests for production, or the disputed facts that are of consequence in the action to explain how the discovery sought will tend to prove or disprove the disputed fact or lead to other evidence that will tend to prove or disprove the fact. Plaintiffs’ motion is denied in this regard.

Plaintiffs seek testimony regarding the “identity of individuals involved in the accidents resulting in COMPLAINTS pertaining to rollover accidents in POLARIS UTVs” (i.e., Category No. 2) but fail to explain why they are entitled to personally identifiable information of Polaris’s customers. Plaintiffs’ motion is denied in this regard.

Polaris has offered to produce a witness to testify regarding, and documents pertaining to, other similar rollover incidents involving 2016 Polaris RZR XP 4 Turbo—the model at issue here—that resulted in upper extremity injuries (Baker Decl., ¶ 11, Exh. H.) The court will extend Polaris’s proposal to encompass testimony and documents pertaining to other similar rollover incidents that occurred in RZR models with a substantially similar ROPS as the one on the stock subject vehicle and which resulted in injuries to upper extremities.

The motion, then, is denied in part (i.e., as to Category No. 2 and Requests Nos. 2 and 3) and otherwise granted, consistent with the above limitations.