Judge: Armen Tamzarian, Case: 20STCV47472, Date: 2023-09-06 Tentative Ruling

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Case Number: 20STCV47472    Hearing Date: September 25, 2023    Dept: 52

Plaintiff Outfront Media VW Communications, LLC’s Motion in Limine No. 2 to Exclude Expert Witness Yones Kabir

            Plaintiff Outfront Media VW Communications, LLC moves in limine to exclude testimony by defendants 7219-7225 West Sunset, LLC and Joseph Geoula’s expert witness Yones Kabir. 

            Plaintiff does not establish grounds for excluding Kabir’s testimony under Code of Civil Procedure section 2034.300.  That section “empowers the court to exclude the expert opinion of any witness offered by a party who has unreasonably failed to produce expert reports and writings as required by section 2034.270.”  (Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 952 (Boston).)  The statute applies to “creation of expert reports and writings” by the expert (ibid.; see CCP §§ 2034.210(c), 2034.270), not to all documents an expert witness relies on or reviews. 

Plaintiff presents insufficient evidence that defendants failed to produce any “discoverable reports and writings” made by Kabir “in the course of preparing” his opinion as required under Code of Civil Procedure sections 2034.210(c) and 2034.270.  Plaintiff shows Kabir wrote at least one email to fellow expert witness Benito Corona (Swearingen Decl., Ex. D), but there is no evidence Kabir wrote any emails to Corona in the course of preparing his own opinion.  The email plaintiff attached (ibid.) says nothing about Kabir’s opinion. 

Plaintiff also presents evidence Kabir did not search for documents responsive to the requests for production included in the notice of his deposition.  (Swearingen Decl., Ex. B, Kabir Depo., 12:5-8.)  But Kabir testified, “As far as I know, that [sic] was no other documents that I was used [sic], or I was provided by somebody else, or not in my possession to – to give it to you.”  (Id., 12:2-4.)  Kabir’s testimony concerned documents he relied on or reviewed, not documents he personally wrote or created. 

Plaintiff shows good cause to permit a further deposition of Yones Kabir.  “As a general matter, the trial court is empowered to exercise superintendency over discovery.”  (Boston, supra, 170 Cal.App.4th at p. 952.)  “[T]he opportunity for meaningful deposition is one of the circumstances the trial court should consider when” determining whether to exclude expert testimony.  (Id. at p. 954.) 

On July 28, 2023, the court granted plaintiff’s motion to compel expert depositions and ordered defendants’ experts to produce all documents requested in their deposition notices.  (Swearingen Decl., Ex. A.)  Kabir testified he did not search for documents requested in the notice of his deposition.  (Id., Ex. B, p. 12.)  That supports plaintiff’s contention that Kabir did not produce all responsive documents.  Rather than excluding Kabir’s testimony, the appropriate remedy is to require him to search for all documents requested and to permit plaintiff to depose Kabir for an additional two hours.

Disposition

Plaintiff Outfront Media VW Communications, LLC’s motion in limine No. 2 is granted in part as to permitting further deposition of Yones Kabir.  Within 7 days, Yones Kabir shall search for all documents requested in the notice of his deposition.  Defendants are ordered to make Kabir available for an additional two hours of deposition within 14 days.