Judge: Anne Hwang, Case: 22STCV19064, Date: 2024-04-18 Tentative Ruling

Case Number: 22STCV19064    Hearing Date: April 18, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

            Defendant Shiki Seafood Buffet (“Defendant”) moves to compel the depositions of Plaintiff Lashabra Johnson’s (“Plaintiff”) experts: Ashkan Sefaradi, M.D. and Greg S. Khounganian, M.D. Plaintiff opposes and Defendant replies.

LEGAL STANDARD

“On receipt of an expert witness list from a party, any other party may take the deposition of any person on the list. The procedures for taking oral and written depositions set forth in Chapters 9 (commencing with Section 2025.010), 10 (commencing with Section 2026.010), and 11 (commencing with Section 2028.010) apply to a deposition of a listed trial expert witness except as provided in this article.” (Code Civ. Proc. § 2034.410.)

“An expert described in subdivision (b) of Section 2034.210 whose deposition is noticed pursuant to Section 2025.220 shall, no later than three business days before his or her deposition, produce any materials or category of materials, including any electronically stored information, called for by the deposition notice.” (Code Civ. Proc. § 2034.415.)

“If, after service of a deposition notice, a party to the action, or an officer, director, managing agent, or employee of a party . . . , 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 . . . 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 . . . described in the deposition notice.” (Code Civ. Proc., § 2025.450, subd. (a).)

“A motion under subdivision (a) [above] shall comply with both of the following:

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.”

(Code Civ. Proc., § 2025.450, subd. (b).)

If a motion is granted, the court shall impose a monetary sanction in favor of that party unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the sanction unjust. (Code Civ. Proc. § 2025.450 (g).)

MEET AND CONFER

The Declaration of Alan Shepard II states that after not receiving the documents from the November 13, 2023 and January 11, 2024 depositions, he attempted to confer with Plaintiff’s counsel. (Shepard Decl. ¶ 4, 9.) However, counsel does not show that a meet and confer took place for the subsequent depositions. Nevertheless, the meet and confer requirement has been met.

DISCUSSION

Here, Defendant has noticed depositions for Plaintiff’s experts, including Ashkan Sefaradi, M.D. and Greg S. Khounganian, M.D (Shepard Decl. ¶ 2.)

Defendant noticed Dr. Sefaradi’s deposition for the mutually agreed date of January 11, 2024. (Id. ¶ 3, Exh. A.) However, three days before the deposition, Defendant did not receive the documents requested in the notice, such as the job file. (Id. ¶ 4.) As a result, the deposition was rescheduled for March 25, 2024 and re-noticed. (Id. ¶ 5, Exh. C.) Plaintiff did not object to the notice, but again did not produce the documents, such as the W-9 and invoice, before the three-day deadline under section 2034.415.

On October 31, 2023, Defendant noticed Dr. Khounganian’s deposition for November 13, 2023. (Id. ¶ 9, Exh. D.) However, three days before the deposition, Defendant did not receive the documents requested in the notice, such as the job file. As a result, the deposition was rescheduled for March 26, 2024 and re-noticed. (Id. ¶ 11, Exh. E.) Plaintiff did not object, however failed to provide the requested files within the three-day deadline under section 2034.415.

Defendant filed the instant motion on March 22, 2024.

In opposition, Plaintiff argues this motion is moot because she has provided a new deposition date for Dr. Khounganian and his expert file has been produced. Plaintiff also asserts that Dr. Sefaradi was unavailable for the March 25, 2024 deposition and that she informed Defendant on March 21, 2024. She is working with Dr. Sefaradi to obtain new dates for a deposition. Plaintiff also asserts she has no objection to producing said experts for deposition.

In reply, Defendant asserts that the following issues remain concerning Dr. Sefaradi: the deposition has not been rescheduled, no dates have been provided, the documents in the notice have not been produced. As for Dr. Khounganian, Defendant asserts that Plaintiff has only offered dates and times after business hours (June 4, 2024 at 4 p.m.) and documents in the notice have been produced.

Therefore, it does not appear that Plaintiff timely objected to the depositions and did not timely provide the documents requested in the notice. Therefore, because no alternative dates for Dr. Sefaradi have been provided, and a date was provided for Dr. Khounganian that may not allow for the deposition to be completed in one day, the motion to compel is granted.

Defendant requests $1,260 in monetary sanctions against Plaintiff and her counsel of record, representing an hourly rate of $200 and the $60 filing fee. (Shepard Decl. ¶ 15.) Because Plaintiff failed to provide the documents under section 2034.415, the Court finds sanctions are warranted, but that the amount requested is excessive. Therefore, the Court awards monetary sanctions in the amount of $760 (3.5 hours of attorney time and the filing fee).

CONCLUSION AND ORDER

Accordingly, Defendant’s motion to compel the depositions of Plaintiff’s experts is GRANTED. Plaintiff shall produce Dr. Sefaradi for deposition within 30 days of this order and produce documents at least 3 days in advance. Plaintiff shall produce Dr. Khounganian for deposition within 30 days of this order, and produce documents at least 3 days in advance. The parties shall meet and confer to schedule the depositions.

The Court further grants Defendant’s request for monetary sanctions against Plaintiff and her counsel of record, jointly and severally, in the reduced amount of $760.00. Said monetary sanctions shall be paid to counsel for Defendant within 30 days of this order.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.