Judge Peter A. Hernandez, Case Number: 22STCV31967, Date: 2023-09-14 Tentative Ruling

1. Plaintiff Ricardo Mendoza’s Motion to Compel the Deposition of Defendant Seidner Enterprises LLC dba Bert’s Mega Mall’s Person Most Knowledgeable is GRANTED in part (i.e., as to Categories Nos. 1, 2, 7, 8, and 13[#2] and as to document requests Nos. 1-4, 8, 10 and 12), with limitations [see below]) and DENIED in part (i.e., as to Categories Nos. 3-6 and 9-13 and document requests Nos. 5-7, 9, 11, 13 and 14).

2. Plaintiff Ricardo Mendoza’s Motion to Compel the 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].

3. Plaintiff Ricardo Mendoza’s Motion for a Sharing Protective Order is DENIED.

Plaintiff Ricardo Mendoza (“Plaintiff” or “Mendoza”) alleges as follows:

On October 17, 2020, Plaintiff sustained severe injuries to his left arm after the 2016 Polaris XP 4 Turbo 1000 (an off-road UTV) (“subject vehicle”) he was riding in rolled over.

On December 5, 2022, Polaris Industries, Inc. (MN), Polaris Sales, Inc., Polaris Industries, Inc. (DE) (collectively, “Polaris”) filed a cross-complaint, asserting causes of action against Cheyenne Rey (“Rey”) for:

On December 7, 2022, Seidner Enterprises LLC dba Bert’s Mega Mall (“Seidner”) filed a cross-complaint, asserting causes of action against Rey and Roes 1-50 for:

On September 14, 2023, Plaintiff filed a First Amended Complaint, asserting causes of action against Polaris, Seidner, Rey and Does 1-100 for:

On September 21, 2023, the court related Case Nos. 22STCV22928 and 22STCV31967 and designated Case No. 22STCV22928 as the lead case.

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance…

“If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2025.450, subd. (g)(1).)

A. Seidner be compelled to produce for deposition by June 27, 2023 their person(s) most knowledgeable (“PMK”) regarding:

2. Altering or adding modifications to the subject vehicle, similar vehicles or other UTVs and the ramifications;

4. Any insurance policy wherein coverage may exist for this lawsuit and any claims for indemnity or tenders of defense made to or by Seidner;

alterations/modifications to the subject vehicle after its original manufacturing and distribution;

7. The doors and nets which are sold or available for customization on the UTVs sold by Seidner;

9. The differences in performance of the subject vehicle with the after-market ROPS system as opposed to the manufacturer’s ROPS system;

10. Whether the subject vehicle will tip over easier with the after-market ROPS system as opposed to the manufacturer’s ROPS;

11. The manufacturer of the after-market ROPS system installed by Seidner on the subject vehicle;

12. Weight of the after-market ROPS system and roof installed by Seidner on the subject vehicle;

13. The weight of the manufacturer’s ROPS system/roof that was delivered with the subject vehicle; and

14. Any warnings from Polaris about the maximum permissible weight for the ROPS or the roof of the subject vehicle, including via aftermarket parts.

B. Seidner 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

At the outset, the court notes that Plaintiff’s concurrently filed separate statement reflects non-compliance with California Rules of Court (“CRC”) Rule 3.1345, subdivision (c) (i.e., “The separate statement must include. . . (3) [a] statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute”) as it pertains to each of the document production requests.

Plaintiff’s counsel John Kristensen (“Kristensen”) represents, and/or the accompanying exhibits reflect, as follows:

On March 2, 2023, Plaintiff served a “Notice of Deposition of Defendant Seidner Enterprises LLC dba Bert’s Mega Mall,” setting the deposition for March 17, 2023. (Kristensen Decl., ¶ 2, Exh. 1.) On March 9, 2023, Seidner served objections. (Id., ¶ 3, Exh. 2.) On March 21, 2023, April 4, 2023 and April 6, 2023, Kristensen reached out to Seidner’s counsel to request a time to discuss Seidner’s objections. (Id., ¶¶ 3, 6 and 8, Exhs. 3-5). On April 6, 2023, Seidner’s counsel Edgar Gutierrez (“Gutierrez”) advised, inter alia, that he intended to file a motion to compel arbitration and would be “happy to revisit this” once the arbitration issue was resolved. (Id., ¶ 9, Exh. 6.)

In the instant case, Plaintiff alleges that Seidner originally sold the subject vehicle involved in the accident and that Defendants, including Seidner, “modified” same. (FAC, ¶¶ 2 and 30). Plaintiff asserts that Seidner modified and changed the roll cage and roof (Motion, 5:7-8).

Seidner does not contend that Plaintiff is precluded from taking its deposition. Seidner acknowledges that it sold the subject vehicle to Rey and that, at the time of purchase, Rey also purchased in excess of $12,000.00 in aftermarket parts. Seidner, however, argues that it did not install an “after market ROPS” system on the subject vehicle or make other modifications and that Rey has unequivocally stated under oath that Plaintiff made modifications. There is, in fact, no evidence before the court suggesting that Seidner made any modifications to the subject vehicle.

Seidner has agreed to produce a witness knowledgeable on the “history of the subject vehicle” after distribution for retail sale and any post-sale encounters with the vehicle (i.e., as to Category No. 1); on what, if any, “modifications,” were made to the subject vehicle (with the term “modifications” interpreted in the broadest possible sense to include any post sale repairs requested by Rey in light of her post sale use and abuse of the subject vehicle and with the caveat that it cannot and will not produce a witness relating to the subject vehicle’s “modifications” or “alterations” made by Rey or others at her request and after the vehicle was sold) (i.e., as to Category No. 2); on doors or nets it sells for use on 2016 Polaris recreational vehicles (i.e., as to Category No. 7); on what, if any other claims against it have been asserted involving a 2016 Polaris recreational vehicle and the claim involve allegations of defective occupant compartment protection components (i.e., as to Category No. 8) and on the issue of product warnings provided by Polaris (i.e., as to Category No. 13 [#2]). Seidner has also agreed to produce insurance information but declines to produce any witness responsive to same (i.e., as to Category No. 4).

Seidner asserts that it is otherwise unable to comply because the other categories seek information that is not within Seidner’s scope of involvement or knowledge, or the categories are unduly overbroad. As Seidner points out, “even if the court was to strike the remainder of Bert’s objections, the fact remains that Bert’s would be in the same circumstance- it cannot provide what it does not have and cannot testify to what it does not know or learn.” (Opp. Sep. State., 10:17-19). Seidner’s position is well-taken. Categories Nos. 2, 5, 9, 11 and 12 pertain to alterations/modifications to the subject vehicle, which Seidner apparently did not have involvement with. Category No. 2 otherwise seeks testimony regarding alterations/modifications to other UTVs or similar vehicles which is irrelevant. Categories Nos. 10 and 13 [#2] involve design and manufacturing specifications best addressed by Polaris, the manufacturer.

As to the concurrent document request, Seidner has agreed to produce sales, repair and insurance records. Plaintiff asserts that “[t]he concurrently filed Separate Statement provides more detail for why the specific documents should be produced” (Motion, 7:22-24); again, however, the separate statement is entirely lacking in this regard. The court determines, then, that Seidner’s proposed production is appropriate under the circumstances.

The motion is granted in part (i.e., as to Categories Nos. 1, 2, 7, 8, and 13[#2] and as to document requests Nos. 1-4, 8, 10 and 12), subject to the limitations set forth above, and denied in part (i.e., as to Categories Nos. 3-6 and 9-13 and document requests Nos. 5-7, 9, 11, 13 and 14).

A. Polaris be compelled to produce for deposition by September 8, 2023 their person(s) most knowledgeable (“PMK”) regarding:

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 leaning rollovers with left arm injuries un 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[2] and to produce a privilege log for any documents withheld on the basis of privilege; and that

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”]); Denied as to Exhibit 2 (i.e., August 19, 2020 minute order in Moretta); Denied as to Exhibit 3 (i.e., “Order re: Ruling on Submitted Matter in case styled Lima v. Polaris Industries, Inc., et al., Case No. RG19026152 (Cal. Super. Ct. Alameda Cnty. Jan. 24, 2022); Denied as to Exhibit 4 (i.e., May 12, 2022 minute order in case styled Duarte v. Polaris Industries, Inc., et al., Case No. 37-2021-00034150 (Cal. Super. Ct. San Diego Cnty. May 13, 2022); Denied as to Exhibit 5 (i.e., “Order After Pretrial Discovery Conference” in case styled Olvera v. Polaris Industries Inc., et al., Case No. 17CECG03825 (Cal. Super.Ct. Fresno Cnty. Nov. 30, 2018) and Denied as to Exhibit 6 (i.e., docket in case styled Murphy v. Polaris Industries, Inc., et al., Case No. CIVDS1620481 (Cal. Super. Ct. San Bernardino Cnty. Nov. 17, 2017).

On February 13, 2023, Plaintiff served a “Notice of Deposition of Defendants Polaris Industries, Inc. (MN) & Polaris Sales, Inc.; Demand for Production of Documents,” setting the deposition for March 1, 2023. (Kristensen Decl., ¶ 2, Exh. 1.) On February 23, 2023, Polaris served objections thereto. (Id., ¶ 3, Exh. 2.) On March 6, 2023, Kristensen sent a letter to Polaris’ counsel. (Id., ¶ 4, Exh. 3.) Polaris’ counsel Hyongsoon Kim (“Kim”) provided a response thereto on March 13, 2023. (Id., ¶ 5, Exh. 4.) Counsel thereafter telephonically met and conferred on March 14, 2023 and April 13, 2023 but were unable to resolve their dispute. (Id., ¶¶ 6 and 7).

At the outset, the court rejects Polaris’ contention that the court lacks jurisdiction to hear Plaintiff’s motion, on the basis that the stay imposed pending the court’s ruling on the motion to compel arbitration has since been lifted.

The court next 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).[3] 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.4^th 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. (Huennekens Decl., ¶ 13, Exh. H; Kristensen Reply Decl., ¶ 9, Exh. 8). The court, then, will proceed to review the merits of the motion.

In the instant case, Plaintiff alleges that on October 17, 2020, he “operated a 2016 Polaris XP 4 Turbo 100” designed, manufactured and distributed by Polaris and that the subject vehicle “rolled over while [Plaintiff was] using the product in a normal manner.” (FAC, ¶¶ 2, 18).

Plaintiff alleges that he “suffered an amputation of his arm” as a result. (Id., ¶ 18). Plaintiff alleged 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.” (FAC, ¶¶ 19 and 21.).

Plaintiff argues that he is 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.4th 216, 223 [internal quotations and citation omitted.)

Plaintiff does not tailor his 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, General, and RZR lines, this would encompass 1,410 different Polaris Ranger models and options dating back to 1999, 853 Polaris RZR models and options dating back to 2008 and 170 different Polaris General models and options dating back to 2016 (Deckard Decl., ¶¶ 5, 25 and 30). 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 various 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.), 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., ¶ 23) and that the ROPS on the General is distinct from the ROPS on the RZR, including differences in number of pillars and tubing shaping (Id., ¶ 29).

Additionally, although Plaintiff contends that he suffered injuries to his left arm when the subject vehicle rolled onto the driver’s side, Plaintiff seeks categories of testimony and documents relating to other types of accidents and injuries that are unrelated to the alleged circumstances herein.

Plaintiff also seeks 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). Plaintiff, however, has 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. Plaintiff’s motion is denied in this regard.

Plaintiff seeks 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 he is entitled to personally identifiable information of Polaris’s customers. Plaintiff’s motion is denied in this regard.

Polaris has offered to produce a witness to testify regarding, and documents pertaining to, other similar rollover incidents and injuries that occurred in 2016 Polaris RZR XP Turbo vehicles—the model at issue here. (Huennekens Decl., ¶ 12, Exh. I.) 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.

“When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may move promptly for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2031.060, subd. (a).)

“The court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense . . .” (Code Civ. Proc., § 2031.060, subd. (b).)

Where a party must resort to the courts, “the burden is on the party seeking the protective order to show good cause for whatever order is sought.” (Fairmont ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255; Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145 [“A party seeking the protective order must show by a preponderance of the evidence that the issuance of a protective order is proper”].) “[T]he issuance and formulation of protective orders are to a large extent discretionary.” (Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588.)

Plaintiff moves the court for an order compelling Plaintiff, Polaris, Seidner and Rey to enter into a protective order that contains a sharing provision.

The court rules on Polaris’ Request for Judicial Notice as follows: Denied as to Exhibit 1 (i.e., “Notice of Ruling Re: Plaintiff’s Motion for a Sharing Protective Order and Polaris’s Motion for a Protective Order” in case styled Moretta v. Polaris Industries Inc., et al., Case No. 19STCV28761 (Cal. Super. Ct. Los Angeles Cnty, Dec. 17, 2020) [“Moretta”]); Denied as to Exhibit 2 (i.e., ruling in case styled De Muñoz v. Polaris Industries Inc., et al., Case No. 22CV-1456 (Cal. Super. Ct. San Luis Obispo Cnt. June 15, 2023)); Denied as to Exhibit 3 (i.e., “Order Motion for Protective Order Granted” in case styled Forte v. Hyundai Motor Co., 2008 WL 8090023, Case No. RG06299899 (Cal. Super. Ct. Alameda Cnty. Mar. 4, 2008)); Denied as to Exhibit 4 (i.e., “Protective Order” in case styled Ward v. Polaris Industries, et al., Case No. 50C01-1708-CT-38 (Ind. Cir. Ct. Marshall Cnty. Feb. 8, 2019)); Denied as to Exhibit 5 (i.e., excerpted “Tentative Rulings and Resolution Review Hearings” in case styled Fereira v. Polaris Industries Inc. et al., Case No. CVPO21- 0198252 (Cal. Super. Ct. Shasta Cnty. June 13, 2022)) and Denied as to Exhibit 6 (i.e., “Case Information” in case styled Fereira v. Polaris Industries Inc. et al., Case No. CVPO21-0198252 (Cal. Super. Ct. Shasta Cnty.)).

On April 6, 2023, Polaris served its proposed protective order upon Plaintiff and all other parties. (Kristensen Decl., ¶ 2). Counsel for Plaintiff and Polaris thereafter met and conferred on April 13, 2023. (Id., ¶¶ 3 and 4). On April 17, 2023, Plaintiff served his proposed protective order, which included a sharing provision. (Id., ¶ 5). On April 26, 2023, Polaris served Plaintiff a letter addressing its concerns with a sharing protective order; Plaintiff responded to same on April 28, 2023. (Id., ¶¶ 6 and 7). Since this time, counsel have not made any progress in resolving this dispute. (Id., ¶ 8).

Polaris agrees that a protective order is warranted in this case, but objects to the inclusion of a sharing provision on the basis that it is entitled to protection of its confidential and proprietary information. Plaintiff’s proposed sharing provision would allow disclosure of information that has been designated as confidential to:

Polaris’s documents with the above identified individuals, Plaintiff’s counsel

The court determines that Plaintiff’s moving papers fail to set forth good cause for the entry of a sharing provision in this case. Plaintiff fails to provide the court with specific facts or evidence that would justify the disclosure of Polaris’s confidential information to third party counsel, and instead only generally claims that the inclusion of a sharing provision would facilitate “the interest in full and fair disclosure,” would further Plaintiff’s desire to “share documents with themselves, and others who are involved in similar claims against Polaris” and would somehow “reduce the risk of inconsistent outcomes in product liability actions.” (Motion, 3:26, 7:12-13 and 7:7-8). As Polaris states, if Plaintiff has legitimate concerns about inconsistent outcomes, there exist procedures to seek coordination of cases. (Opp., 10:18-11:2).

“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2025.420, subd. (a).)

“The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: That the deposition not be taken at all. That the deposition be taken at a different time. . .” (Code Civ. Proc., § 2025.420, subd. (b).)

Plaintiff moves the court for an order that Seidner’s deposition of Rey, originally noticed for October 4, 2023, proceed after resolution of Plaintiff’s deposition of Seidner’s PMK.

Plaintiff’s counsel Frank M. Mihalic, Jr. (“Mihalic”) represents, and/or the accompanying exhibits reflect, as follows:

On March 2, 2023, Plaintiff noticed the deposition of Seidner’s PMK. (Mihalic Decl., ¶ 3). On March 10, 2023, Seidner served its objections to the aforesaid deposition notice. (Id., ¶ 4). On May 5, 2023, Plaintiff moved to compel the deposition of Seidner’s PMK as noticed, and for Seidner to produce all responsive documents to Plaintiff’s Requests for Production of Documents. (Id., ¶ 8). On May 19, 2023, Seidner moved to compel arbitration; the case was stayed until the court denied the motion on September 14, 2023. (Id., ¶¶ 9 and 10). On September 19, 2023, Seidner served a “Notice of Taking Remote Videotaped Deposition of Defendant and Cross-Defendant Cheyenne Rey,” apparently noticing Rey’s deposition for October 4, 2023. (Id., ¶ 2). The hearing on Plaintiff’s motion to compel the deposition of Seidner’s PMK was moved to December 8, 2023, or two months after Rey’s deposition was scheduled to occur. (Id., ¶ 11). Counsel unsuccessfully met and conferred on September 27, 2023. (Id., ¶¶ 19-21).

The Discovery Act does not recognize discovery priority based on notice alone. (Code Civ. Proc., § 2019.020, subd. (a) [“Except as otherwise provided by a rule of the Judicial Council, a local court rule, or a local uniform written policy, the methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or another method, shall not operate to delay the discovery of any other party”].)

However, a party may be prevented from unilaterally altering the sequence of depositions via the issuance of a protective order. (Code Civ. Proc., § 2019.020, subd. (b) [“Notwithstanding subdivision (a), on motion and for good cause shown, the court may establish the sequence and timing of discovery for the convenience of parties and witnesses and in the interests of justice”].)

Plaintiff asserts that he seeks to have Rey deposed after the resolution of the motion to compel of Seidner’s PMK because he believes Rey’s deposition will be “more fruitful” if he is in possession of documents concerning any repairs made to the subject vehicle and any modifications of the subject vehicle, which documents he is seeking from the notice of deposition directed to Seidner’s PMK.

The motion is unopposed. It is unclear to the court, however, whether or not the motion is proceeding, given the fact that Rey has since provided a sworn statement under oath. The court will hear from the parties in this regard at the time of the hearing.

[1] The document requests seek (1) documents regarding all sales of the subject vehicle by any and to any person or entity; (2) documents regarding any repairs performed on the subject vehicle by any and to any person or entity; (3) documents regarding any modification to the subject vehicle after it left Polaris’ control; (4) documents regarding alterations or modifications performed on the subject vehicle by Seidner or by any other person or entity; (5) documents regarding all after-market parts and accessories which are either sold individually, or utilized by Seidner to produce “Custom Built UTVs” as advertised on its website; (6) documents comparing the after-market ROPS system installed on the subject vehicle with the manufacturer’s ROPS system; (7) documents regarding Seidner’s knowledge or other rollover accidents or injuries that involved UTVs; (8) documents regarding the aftermarket parts installed or sold by Seidner on the subject vehicle, including the weight of the part; (9) documents from Polaris regarding warnings about the maximum permissible weight for the ROPS or the roof of the subject vehicle; (10) documents including the complete policy for any policy of insurance through which Seidner was or might be insured in any manner for the damages, claims, or actions that have arisen out of the injuries sustained by plaintiff; (11) documents regarding requests for indemnity or tendering of the defense in this matter; (13) documents constituting and/or regarding any contracts between or among Seidner and Polaris related to the purchase and/or sale of the subject vehicle; (13) documents consisting of f marketing or advertisements by Seidner, Polaris, or other manufacturers regarding UTV after-market parts and (14) documents constituting and/or regarding any contracts between or among Seidner and Polaris regarding Seidner being a Polaris dealership.

[2] The document requests seek (1) documents regarding complaints and/or claims against or to Polaris pertaining to allegations involving the “Rollover Protection System” and/or protection systems in Polaris UTVs; (2) documents between Polaris and the United State Consumer Product Safety Commission (“CPSC”) pertaining to rollovers in UTVs; (3) documents between Polaris and Recreational Off-Highway Vehicle Association pertaining to rollovers in UTVs; (4) documents regarding complaints and/or claims against or to Polaris pertaining to allegations involving inadequate nets, doors or other protections for limbs in Polaris UTVs; (5) documents regarding complaints and/or claims against or to Polaris pertaining to injuries to limbs occurring during operations of Polaris UTVs; (5 [#2]) documents regarding complaints and/or claims regarding left arm injuries/amputations or individuals involved in the driver side leading rollovers in Polaris UTVs and (6) documents regarding complaints and/or claims regarding right arm injuries/amputations of individuals involved in the passenger side leading rollovers in Polaris UTVs.

[3] Code of Civil Procedure § 2025.480, subdivision (b) provide, in relevant part, that “[t]his motion shall be made no later than 60 days after the completion of the record of the deposition. . .”