Pierburg GmbH & Co. Kg. v. Superior Court

Citation137 Cal.App.3d 238,186 Cal.Rptr. 876
CourtCalifornia Court of Appeals Court of Appeals
Decision Date05 November 1982
PartiesPIERBURG GmbH & CO. KG, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, DONG KY HUA, a Minor, et al., Real Parties in Interest. Civ. 65767.

Kinsella, Boesch, Fujikawa & Towle, Dale F. Kinsella and Karen L. Patterson, Los Angeles, for petitioner.

Kenneth L. Knapp, Costa Mesa, Al Schallau and Jean Corey, Los Angeles, for real parties in interest.

No appearance for respondent.

WOODS, Presiding Justice.

By petition for mandate a West German national corporation, Pierburg GmbH Co. KG (hereafter "Pierburg"), which is a defendant in the underlying personal injury products liability action in respondent court, seeks to vacate respondent's order of June 9, 1982, that requires Pierburg to answer written interrogatories served upon it by plaintiffs (real parties in interest) without compliance with the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters (23 U.S.T. 2555, T.I.A.S. No. 7444, codified at 28 U.S.C. § 1781) (hereafter the "Hague Evidence Convention").

The principle question presented here is whether respondent abused its discretion in ruling that the Hague Evidence Convention need not be complied with by plaintiffs seeking discovery of Pierburg because by answering other written interrogatories propounded by other parties in the same action Pierburg has waived the applicability of that Convention.

Review of the Hague Evidence Convention and the California cases addressing its application requires the conclusion that a litigant may not be estopped to assert the requirements of the Convention by reason of failure to assert those requirements as to prior discovery in the action. A California court should require litigants seeking such discovery to first attempt to comply with the Convention before allowing the litigant to disregard it.

The circumstances leading up to the presently challenged order of June 9, 1982, are not disputed. Plaintiffs were injured when their Audi automobile's engine caught fire. They filed a personal injury action in respondent court and eventually named petitioner Pierburg, a West German corporation, on a products liability theory alleging the carburetor Pierburg manufactured in West Germany was a cause of plaintiffs' injuries.

Pierburg was served pursuant to the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in April 1981. On September 24, 1981, plaintiffs propounded a comprehensive first set of written interrogatories upon Pierburg by serving Pierburg's Los Angeles attorneys by mail. The interrogatories, numbering 315 excluding subparts, inquired in great technical detail as to the design, manufacture, components, known defects, testing, and operation of the Pierburg carburetor.

Pierburg sought a protective order, asserting that plaintiffs had not complied with the Hague Evidence Convention in propounding the interrogatories. Plaintiffs filed opposition, asserting that that Convention was not applicable. The protective order was granted on March 5, 1982. It required plaintiffs to comply with the Convention and also required that "defendant Pierburg must comply with the Hague Evidence Convention when propounding discovery to plaintiffs, if applicable." By order of April 8, 1982, respondent made Pierburg's reciprocal compliance unconditional.

Thereafter Pierburg's attempts to "comply" with the Hague Convention to inspect the subject automobile in plaintiffs' control in California met with a ruling by a federal district court and a letter from the Department of Justice stating that the Convention did not apply to physical inspections to be conducted within the territorial jurisdiction of state court compelling the discovery. Pierburg moved for an order compelling inspection without compliance with the Convention. Plaintiffs filed opposition to that motion and also sought vacation of the March 5th order on the basis that Pierburg had voluntarily answered written interrogatories propounded by a codefendant without asserting noncompliance with the Hague Evidence Convention. The singular subject of those interrogatories was the location of certain photographs of the automobile.

After hearing, which focused upon Pierburg's alleged waiver of Hague Evidence Convention requirements, respondent issued its order of June 9, 1982, which vacated the reciprocal protective order of March 5th and directed Pierburg to respond to plaintiffs' written interrogatories. Plaintiffs claim that they cannot afford to translate their interrogatories into German as required by the Convention. Plaintiffs never made any effort to serve their interrogatories on Pierburg in conformity with the Hague Evidence Convention. Pierburg filed its petition with this court June 30, 1982. We stayed the June 9th order and issued the alternative writ.

The two reported California cases that have addressed the applicability of the Hague Evidence Convention where California civil litigants sought discovery of West German national defendants within West Germany have established that California courts must compel the litigants to first attempt such discovery in conformity with that Convention. This rule applies even though the courts have jurisdictional power to compel the party to comply with discovery outside the Convention.

The discussions in these cases as to the purpose of the Convention, which is an international treaty ratified by both West Germany and the United States, also compel the conclusion that a civil litigant may not waive the applicability of the Convention by failing to invoke it as to prior discovery in the action.

In the first of the two cases, Volkswagenwerk Aktiengesellschaft v. Superior Court (3d Dist. 1973) 33 Cal.App.3d 503, 109 Cal.Rptr. 219, California residents sued a West German corporation for personal injuries allegedly resulting from the defective design and manufacture of an automobile manufactured by the defendant in West Germany. Plaintiffs sought discovery in the form of appointment of a commissioner to take oral depositions of defendant's officials and employees in West Germany, and in the form of permitting plaintiffs to physically inspect and photograph defendant's plant in West Germany.

Defendant opposed such discovery contending that it violated the Hague Evidence Convention for failure to first seek the consent and cooperation of the West German judiciary by submitting "Letters of Request" in conformity with the Convention. Defendant submitted official documentation from the West German Embassy stating the discovery sought would constitute an encroachment upon its government's sovereign rights. The trial court nevertheless issued the requested discovery orders.

The Court of Appeal in mandate proceedings held this was an abuse of discretion. That court pointed out critical considerations, derived from the 1968 Hague Conference on Private International Law and other authorities, which is applicable to our present question of whether a litigant has any power to waive the applicability of the Convention: "According to the authorities, common law nations regard the deposition of a willing witness as a private, relatively informal matter in which their courts have no interest. A different view is taken by civil law nations such as Germany. There, a deposition in aid of a foreign proceeding is a public matter, requiring the participation and consent of their own courts; the activity of a commissioner appointed abroad [pursuant to section 2018, subdivision (b) of the Code of Civil Procedure] represents an intrusion upon the 'judicial sovereignty' of such a nation; thus a letter rogatory is the usual and accepted method of taking depositions in a civil law nation. [Citations.]" (Volkswagenwerk Aktiengesellschaft v. Superior Court, supra, 33 Cal.App.3d at p. 507, 109 Cal.Rptr. 219.) The court continued: "Whatever the generous provisions of the California discovery statutes, courts ordering discovery abroad must conform to the channels and procedures established by the host nation. The limitation may rest on any one of several theories--comity, curtailed discretion or implied statutory qualification. In this case the California discovery orders would impair the powers of the Federal Republic of Germany to control the property and personnel of an entity which it has created and which has never left its protection." (Volkswagenwerk, supra, 33 Cal.App.3d at p. 508, 109 Cal.Rptr. 219.) The Volkswagenwerk court concluded with the comment that if it develops that the West German defendant is attempting to evade legitimate discovery after plaintiff has attempted discovery by letters of request under the Convention, then the California court may compel discovery.

The second case dealing with the application of the Hague Evidence Convention (which by coincidence involves the same German corporation) is Volkswagenwerk Aktiengeschellschaft v. Superior Court (1st Dist. 1981) 123 Cal.App.3d 840, 176 Cal.Rptr. 874 (hereafter "Volkswagenwerk (1981)"). There California plaintiffs sued Volkswagenwerk for personal injuries allegedly resulting from a defective automobile manufactured by defendant in West Germany.

Plaintiffs obtained discovery orders compelling defendant to permit physical inspection of its plant and interviews of its employees in West Germany; to permit inspection and photographing of the plant's technical library and design and testing records concerning the type of vehicle involved and predecessor types; to allow informal interviews of defendant's employees at its plant; and to allow depositions of defendant's officers and employees. All such discovery was to be conducted in West Germany without compliance with the Hague Evidence Convention.

After determining that the informal interviews were not a permissible method of...

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