Judge: Steven A. Ellis, Case: 21STCV06600, Date: 2023-10-19 Tentative Ruling
Case Number: 21STCV06600 Hearing Date: April 12, 2024 Dept: 29
Plaintiff’s Motion to Compel Defendant to Produce Documents
and Answer Questions at Deposition
Tentative
The motion to compel is granted in part and denied in part.
Plaintiff’s request for sanctions is granted in part.
Background
Plaintiff Mariam Arutyunyan (“Plaintiff”) alleges that she was
seriously injured when an electric mixer or blender malfunctioned while being
used in a reasonably foreseeable manner.
Plaintiff filed the complaint in this action on February 18, 2021,
asserting causes of action for negligence and products liability against
Defendants Conair Corporation, Waring Commercial, and Does 1 through 20.
On August 31, 2021, Norguard Insurance Company (“Norguard”)
filed a complaint in intervention against Conair Corporation, Waring Commercial,
and Does 1 through 20, alleging that the accident occurred during the course of
Plaintiff’s employment and that Norguard made workers compensation payments to
Plaintiff as a result of the accident.
Conair Corporation filed an answer to the complaint on
November 4, 2021, and to the complaint in intervention on December 30, 2022.
On January 20, 2022, Plaintiff amended the complaint to name
Conair LLC as Doe 1 and Conair LLC of CA as Doe 2.
On March 9, 2022, Conair LLC (“Conair”) filed an answer to the
complaint.
Plaintiff filed requests to dismiss Conair Corporation, Conair
LLC of CA, and Waring Commercial on December 29, 2023.
As is relevant to this motion, on December 20, 2023, Plaintiff
served a notice of Conair’s deposition that identified 20 topics of examination
and included 2 requests for production.
(Geragos Decl., ¶ 4 & Exh. 1.)
On January 21, 2024, Conair served objections. (Id., ¶ 5 & Exh. 2.)
On January 24, 2024, Jonathan Berera appeared for deposition and
testified as the person most qualified (“PMQ”) designated by Conair. (Id., ¶ 6 & Exh. 3.) Mr. Berera did not produce any documents, and
Conair’s counsel instructed him not to answer certain questions. (Id., ¶¶ 6-7.)
On March 12, 2024, Plaintiff filed this motion to compel. Conair filed an opposition on April 2, and
Plaintiff filed a reply on April 5. The
parties participated in an Informal Discovery Conference on April 8, but the
matter was not resolved.
Legal Standard
“Any party may obtain discovery … by taking in California the oral
deposition of any person, including any party to the action.” (Code Civ. Proc., § 2025.010.) Code of Civil Procedure sections 2025.210
through 2025.280 provide the requirements for (among other things) what must be
included in a deposition notice, when and where depositions may be taken, and
how and when the notice must be served.
“The service of a deposition notice … is effective to require any
deponent who is a party to the action or an officer, director, managing agent,
or employee of a party to attend and to testify, as well as to produce any
document, electronically stored information, or tangible thing for inspection
and copying.” (Id., § 2025.280,
subd. (a).)
Section 2025.230 provides: “If the deponent named is not a natural
person, the deposition notice shall describe with reasonable particularity the
matters on which examination is requested.
In that event, the deponent shall designate and produce at the
deposition those of its officers, directors, managing agents, employees, or
agents who are most qualified to testify on its behalf as to those matters to
the extent of any information known or reasonably available to the
deponent.”
Section 2025.410, subdivision (a), requires any party to serve a
written objection at least three days before the deposition if the party
contends that a deposition notice does not comply with the provisions of
sections 2025.210 through 2025.280.
“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.” (Id., § 2025.450, subd. (a).) Any such motion to compel must show good
cause for the production of documents and, when a deponent has failed to
appear, the motion must be accompanied “by a declaration stating that the
petitioner has contacted the deponent to inquire about the nonappearance.” (Id., § 2025.450, subd. (b).)
When a motion to compel 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.” (Id., § 2025.450,
subd. (g)(1).)
“If a deponent fails to answer any question or to produce any
document, electronically stored information, or tangible thing under the
deponent’s control that is specified in the deposition notice or a deposition
subpoena, the party seeking discovery may move the court for an order
compelling that answer or production.” (Code Civ. Proc., § 2025.480,
subd. (a).) “This motion shall be made no later than 60 days after
the completion of the record of the deposition, and shall be accompanied by a
meet and confer declaration under Section 2016.040.” (Id., subd. (b).)
“If the
court determines that the answer or production sought is subject to discovery,
it shall order that the answer be given or the production be made on the
resumption of the deposition. (Id., subd. (i).)
“[T]he court shall impose a monetary sanction under Chapter
7 (commencing with Section 2023.010) against any party, person, or attorney who
unsuccessfully makes or opposes a motion to compel an answer or production,
unless it finds that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the sanction
unjust.” (Id., subd. (j).)
In Chapter 7 of
the Civil Discovery Act, section 2023.010, subdivision (d), defines “[m]isuses
of the discovery process” to include “[f]ailing to respond to or to submit to
an authorized method of discovery.”
Where a party or attorney has engaged in misuse of the discovery
process, the court may impose a monetary sanction in the amount of “the
reasonable expenses, including attorney’s fees, incurred by anyone as a result
of that conduct.” (Code Civ. Proc., § 2023.030,
subd. (a).)
Preliminary
Issues
The Court finds
that Plaintiff engaged in a sufficient meet and confer effort and has
participated in an Informal Discovery Conference.
Discussion
Document Requests
Plaintiff included in the deposition notice two requests for
production of documents.
Request No. 1
This request requires the production of “All document you
reviewed to prepare for your deposition.”
Conair objected based on the attorney-client privilege and
work product doctrine and then stated that all non-privileged documents had
already been produced.
In the Opposition to the motion, Conair states that it is not refusing
to produce any documents but merely seeking to ensure proper treatment of
documents containing proprietary and confidential information. (Opp. at 4:19-22; Mayat Decl., ¶ 7.)
Conair’s objections are OVERRULED. Documents shown to a PMQ witness to help prepare
the witness for deposition are discoverable.
(See Evid. Code, § 771, subd. (a).)
Any attorney-client privilege or work product doctrine protection is waived
in these circumstances. (BP Alaska
Exploration v. Super. Ct. (1988) 199 Cal.App.3d 1240, 1258-1259; Kerns
Constr. Co. v. Super. Ct. (1968) 266 Cal.App.2d 405, 413-414.) Moreover, and independently, Conair has not
made any showing of foundational facts supporting its privilege and work
product objections. A party claiming that the attorney-client privilege or work
product doctrine is a basis to resist or limit discovery has the initial burden
of establishing the factual basis for the claim. (Zimmerman v. Super. Ct. (2013)
220 Cal.App.4th 389, 402; Citizens for Ceres v. Super. Ct. (2013) 217
Cal.App.4th 889, 911;Santa Rosa Memorial Hospital v. Super. Ct. (1985)
174 Cal.App.3d 711, 727-728.)
The documents requested are
within the scope of discovery and good cause has been shown.
The motion to compel production
of the documents in Request No. 1 is GRANTED.
Conair is ordered to produce the documents and have the witness appear for
a resumed deposition and answer questions about the documents.
Request No. 2
This request requires the production of “All document you will
rely on for your deposition.”
Conair objected based on the attorney-client privilege and
work product doctrine and on the ground that the phrase “will rely” was vague
and ambiguous. Conair then stated that
all non-privileged documents had already been produced.
Conair’s objections are SUSTAINED. It is unclear to the Court how a witness could
possibly predict which documents the witness will rely on at a deposition –
without knowing, in advance, what questions will be asked.
The motion to compel production of the documents in Request
No. 2 is DENIED.
Topics for Testimony
The case involves, or at least potentially involves, two
separate products: a Big Stix Heavy Duty Immersion Blender WSB55 and a Big Stix
Heavy Duty Immersion Blender WSB60. For
each of these two products, Plaintiff requested examination on the instruction
manual (Topics 1-2); the chain of distribution (Topics 3-4); the process for
identifying design defects (Topics 5-6); testing relating to safety, consumer
use, and consumer misuse (Topics 7-8); design changes (Topics 9-10); operation
(Topics 11-12); inclusion or and operation of the “Continuous On” feature
(Topics 13-14); complaints and injuries (Topics 15-16); and recalls (Topics
17-18).
In addition, Plaintiff also requested examination on the
relationship between various entities or divisions (Topic 19) and on complaints
or injuries related to any model of the Big Stix Heavy Duty Immersion Blender (Topic
20).
Conair stated various objections to most or all of the
examination topics. Notwithstanding the
objections, Mr. Berera was produced as a PMQ and testified. On at least four occasions, however, Conair’s
counsel instructed the witness not to answer questions. Plaintiff now challenges these instructions
and seeks an order compelling the witness to answer the questions at a resumed
deposition.
First Instruction Not to Answer
During the deposition, Mr. Berera was shown a Conair marketing
video (marked as Exhibit 8) that demonstrated, among other things, the use and
operation of Conair’s Big Stix Heavy Duty Immersion Blenders. After approximately five minutes of
questioning, Conair’s counsel instructed the witness not to answer any further
questions about the video, stating that it was outside the scope of the examination
topics in the deposition notice.
(Geragos Decl., Exh. 3 [“PMQ Depo.”], at p. 112:3-4, p. 113:14-18.)
Conair’s objections are OVERRULED. The questions are not outside the scope of Topics
Nos. 11-12. Moreover, and independently,
an instruction not to answer is generally not proper except for matters
relating to privilege, work product, privacy, and trade secrets. (See Stewart v. Colonial Western Agency
(2001) 87 Cal.App.4th 1006, 1013-1015; 2 Weil & Brown, California Practice
Guide: Civil Procedure Before Trial (2023), ¶¶ 8:734-734.5.)
The motion to compel as to this
instruction is GRANTED. Conair is
ordered to produce the witness for a resumed deposition and answer questions
about the video that was marked as Exhibit 8.
Second Instruction Not to Answer
Later in the deposition, Conair’s counsel again instructed the
witness not to answer questions about the same video. (PMQ Depo. at p. 145:6-9.) For the same reasons as set forth above,
these objections are OVERULED.
The motion to compel as to this
instruction is GRANTED. Conair is
ordered to produce the witness for a resumed deposition and answer questions
about the video that was marked as Exhibit 8.
Third Instruction Not to Answer
Plaintiff asked Mr. Berera whether something other than the
Immersion Blender caused the injury to Plaintiff. Conair’s counsel objected and instructed the
witness not to answer. (PMQ Depo., at p.
159:21-22.)
Conair’s objections are SUSTAINED. This question was outside the scope of the
topics in the deposition notice.
The motion to compel as to this instruction is DENIED.
Fourth Instruction Not to Answer
Plaintiff asked Mr. Berera questions about the internal
operation of the blender. Conair’s
counsel objected and instructed the witness not to answer. (PMQ Depo., at p. 190:10-11.)
Conair’s objections are OVERRULED. The questions are not outside the scope of Topics
Nos. 11-12.
The motion to compel as to this
instruction is GRANTED. Conair is
ordered to produce the witness for a resumed deposition and answer questions
about the operation of the blender.
Sanctions
The Court has mostly (although not entirely) granted Plaintiff’s
motion to compel. Conair’s opposition to
the motion was mostly (although not entirely) unsuccessful. The Court does not find that Conair acted with substantial
justification or that other circumstances make the imposition of the sanction
unjust
was substantially justified or that it would be unjust.
Under these circumstances, the Court GRANTS in part Plaintiff’s
request for sanctions. The Court sets
sanctions in the amount of $1,560, calculated based on four hours of attorney
time, multiplied by a reasonable billable rate of $375 per hour for the work
necessary on this motion, plus the $60 filing fee. (See Schwar Decl., ¶ 6.)
Conclusion
The Court GRANTS in part and DENIES in part Plaintiff’s motion
to compel.
The Court ORDERS Conair to produce the documents identified in
Document Request No. 1 in the Notice of Deposition served on December 20, 2023,
at or prior to the resumed deposition of Conair pursuant to that deposition
notice.
The Court ORDERS Conair, through its personal most qualified,
to answer questions regarding Exhibit 8 (marked at the deposition) and
regarding the operation of the products at the resumed deposition.
The Court ORDERS that the resumed deposition be taken on a
date and time to be arranged by counsel that is within 21 days of notice of
this order.
The Court ORDERS Conair and its counsel Klinedinst PC, jointly
and severally, to pay monetary sanctions to Plaintiff under the Civil Discovery
Act in the amount of $1,560, within 30 days of notice.
The Court otherwise DENIES the motion.
The Court ORDERS moving party to give notice.