Judge: Anne Hwang, Case: 22STCV31693, Date: 2024-10-14 Tentative Ruling

Case Number: 22STCV31693    Hearing Date: October 14, 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 Eagle Rock Plaza Owner, LLC (“Defendant”) now moves for a protective order staying the deposition of Robert Cotton and to quash Plaintiff Bertha Cruz’s (“Plaintiff”) deposition notice. Plaintiff opposes and Defendant replies.

LEGAL STANDARD

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(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. (Code Civ. Proc. § 2025.420(b).) “This protective order may include, but is not limited to, one or more of the following directions:

(1) That the deposition not be taken at all.

(2) That the deposition be taken at a different time.”

(Ibid.)

The 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 for a protective order, 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. (Code Civ. Proc. § 2025.420(h).)

MEET AND CONFER

The declaration of Nida P. Channah, Defendant’s counsel, states the following: “[o]n August 23, 2024, my office sent a meet and confer letter to Plaintiff's counsel on Defendant's concerns with Plaintiff's deposition as delineated in the concurrently filed motion for protective order.” (Channah Decl. ¶ 4.) No response was received. (Id. ¶ 5.) Therefore, it appears Defendant attempted to reasonably resolve the issue.

DISCUSSION

            This is a negligence and premises liability action where Plaintiff alleges she was riding an escalator on property owned by Defendant when it suddenly stopped, and caused her to fall.

            On July 31, 2024, Defendant served a motion for summary judgment (filed August 1, 2024), which included a declaration from Robert Cotton (“Cotton”) as an expert consultant on elevators and escalators. The hearing for summary judgment is currently scheduled for January 16, 2025.

            On August 12, 2024, Plaintiff noticed Cotton’s deposition and production of documents for September 11, 2024. (Channah Decl., Exh. B.) On August 29, 2024, served an objection. (Id. ¶ 6.)

            Defendant argues that noticing Cotton’s deposition violated Code of Civil Procedure section 2034.410 since the parties have not yet designated experts. (Motion, 3.) According to Defendant, the expert designation deadline in this case is April 1, 2025.

            Under Code of Civil Procedure section 2034.410, a party may depose an expert witness upon receipt of that party’s expert witness list. According to statute, “[t]he specified date of exchange shall be 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date, unless the court, on motion and a showing of good cause, orders an earlier or later date of exchange.” (Code Civ. Proc., § 2034.230, subd. (b).) However, this timeframe can conflict with the timeframes surrounding motions for summary judgment. (See Code Civ. Proc., § 437c, subd. (a)(1) [“motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed”]; Code Civ. Proc., § 437c, subd. (a)(3) [“motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise”].)

            The Court of Appeal recognized the “juxtaposition” of these competing time limits in St. Mary Medical Center v. Superior Court (St. Mary) (1996) 50 Cal.App.4th 1531. As the court there observed,

“it would defeat the purpose of the summary procedure were we to recognize an absolute right of a party involved in the process to depose any person who provides evidence in support of or opposition to the proceeding. On the reverse side of the coin, it would defeat the concept of a summary procedure if the opposition party were to be allowed to defeat the motion by less than candid declarations or affidavits in opposition.”

(St. Mary, supra, 50 Cal.App.4th at 1538.)

The court then recognized that “[w]hile it is true that motions for summary judgment are to be heard on affidavits or declarations, contradictions raised by discovery may require the trial court to disregard the declarations or affidavits. . . . For that reason, we believe that under the proper circumstances, the parties should be allowed to depose an expert who supplies a declaration or affidavit in support of or in opposition to summary judgment or summary adjudication where there is a legitimate question regarding the foundation of the opinion of the expert.” (St. Mary, supra, 50 Cal.App.4th at 1540 [allowing a limited deposition of an expert where the opposing party set forth evidence that raised a “serious question” that an expert’s declaration in opposition to a summary judgment was factually incorrect].)

However, the court also cautioned “that the process should not be utilized to turn summary proceedings into mini-trials. Whether to grant discovery in a given case falls within the sound discretion of the trial court based upon all of the facts presented. There must be objective facts presented which create a significant question regarding the validity of the affidavit or declaration which, if successfully pursued, will impeach the foundational basis of the affidavit or declaration in question.” (St. Mary, supra, 50 Cal.App.4th at 1540-41.)

Here, Defendant argues that Plaintiff has provided no such facts raising a question of Cotton’s foundation. Based on a cursory review of the declaration, it appears the opinions are based on a May 9, 2024 inspection that Cotton conducted of the subject escalator system. (Channah Decl., Exh. A.)

As an initial matter, while Plaintiff argues that Defendant lacks standing to object on Cotton’s behalf, it provides no authority in support. The plain language of Code of Civil Procedure section 2025.420(a) states that “any party” may move for a protective order. Furthermore, Cotton’s declaration states he was retained by Defendant’s counsel’s firm. (Channah Decl., Exh. A, Cotton Decl. ¶ 1.)

In opposition, Plaintiff seeks to review the documents that Cotton relied upon in his declaration in order “to understand the foundation of his opinions.” (Opp., 8.) However, the declaration lists the materials used as foundation and Plaintiff does not explain why it cannot serve a separate request for production on Defendant to obtain any records that it does not possess or are unclear from the list provided in the declaration. As a result, Plaintiff fails to set forth specific objective facts raising a legitimate question about Cotton’s foundation. Therefore, the motion for protective order is granted and the deposition is stayed.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Defendant Eagle Rock Plaza Owner, LLC’s motion for protective order.

            Moving party shall provide notice of the Court’s order and file a proof of service of such.