Judge: Audra Mori, Case: 20STCV07238, Date: 2023-02-14 Tentative Ruling

Case Number: 20STCV07238    Hearing Date: February 14, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Brent James Sharon (“Plaintiff”) filed this action against Defendant Kadi Harbaugh (“Defendant”) for damages arising out of a motor vehicle accident. 

At this time, Defendant moves for a protective order requiring that the discovery deposition of expert Dr. Peyman Gravori, D.O. (“Dr. Gravori”) be conducted before Plaintiff’s video recorded deposition of Dr. Gravori be taken for use at trial.  Plaintiff opposes the motion, and Defendant filed a reply.

Defendant provides that on December 19, 2022, Plaintiff served an expert designation naming Dr. Gravori as a non-retained treating expert.  Defendant noticed Dr. Gravori’s deposition, and Plaintiff noticed his intent to videotape the deposition for use at trial.  Defendant states that Defendant met and conferred with Plaintiff about postponing the video recording of Dr. Gravori’s deposition testimony until Defendant has had an adequate opportunity to prepare, by deposition of Dr. Gravori, for cross-examination.  Defendant asserts that Defendant will need time to have Dr. Gravori’s testimony reviewed by Defendant’s own medical experts so they can advise what subjects need to be asked about during cross-examination.  Defendant requests two days to allow Defendant to prepare for Plaintiff’s videotaped deposition of Dr. Gravori. 

In opposition, Plaintiff argues that identified Dr. Gravori in responses to Defendant’s written discovery in June 2020, and that Defendant then waited until December 2022 to issue a subpoena for Dr. Gravori’s deposition testimony.  Plaintiff argues that Defendant thus had an adequate opportunity to prepare for a video deposition.  Plaintiff contends that requiring Dr. Gravori to sit for two separate depositions would result in annoyance or oppression.   

In reply, Defendant argues that defense counsel is not a doctor and cannot effectively cross-examine Dr. Gravori immediately after hearing Dr. Gravori’s testimony for the first time.  Defendant contends that Plaintiff can cite no authority supporting his position that Defendant should not be permitted to prepare for cross-examination, or Defendant should not be afforded any time or opportunity to consult an appropriate expert in order to prepare to cross-examine a doctor.  Additionally, Defendant asserts that Dr. Gravori has not complained about possibly being deposed twice. 

2. Motion for Protective Order

a. Meet and Confer

CCP § 2025.420(a) states that “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.”

In this case, Defendant, through counsel, asserts that Defendant has attempted to meet and confer with Plaintiff to resolve this dispute but was unable to do so.  (Mot. Birch Decl. ¶¶ 8, 11-13.)  The Court finds this is sufficient to satisfy CCP § 2025.420(a). 

b. Analysis

CCP § 2025.010 provides, “[a]ny party may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by taking in California the oral deposition of any person, including any party to the action.”  (Emphasis added.) 

Pursuant to CCP § 2025.420(b), “[t]he 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. 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.

(3) That a video recording of the deposition testimony of a treating or consulting physician or of any expert witness, intended for possible use at trial under subdivision (d) of Section 2025.620, be postponed until the moving party has had an adequate opportunity to prepare, by discovery deposition of the deponent, or other means, for cross-examination.

Furthermore, CCP § 2017.020(a) states “[t]he court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person.” 

            Here, Plaintiff has noticed a video recorded deposition of his own expert, Dr. Gravori.  Defendant is thus seeking an order under CCP § 2025.420(b)(3) to allow Defendant to an adequate opportunity to prepare for the video recorded deposition by first taking a discovery deposition of Dr. Gravori.  Based on its plain language, this appears to be the exact scenario contemplated by CCP § 2025.420(b)(3).  Allowing Defendant to first take a discovery deposition of Dr. Gravori will allow Defendant to better prepare to ask Dr. Gravori the type of questions ordinarily asked at trial.  As defense counsel asserts, Defendant cannot adequately prepare to cross-examine Dr. Gravori’s at the same time Defendant’s counsel is hearing the testimony for the first time.  Although Plaintiff argues that Plaintiff identified Dr. Gravori in discovery, there is no showing that Defendant was aware that Plaintiff intended to video record Dr. Gravori’s deposition for possible use at trial prior to Plaintiff serving notice of such on January 18, 2023.  (Mot. Exh. D.)  Moreover, to the extent that Plaintiff argues that subjecting Dr. Gravori to two depositions constitutes unwarranted annoyance, embarrassment, or oppression, Plaintiff does not establish that he is authorized to object on behalf of Dr. Gravori, nor does Plaintiff identify any prejudice he will suffer if Defendant is allowed an adequate opportunity to prepare for Dr. Gravori’s videotaped deposition by Plaintiff.   

            Based on the forgoing, the motion is granted.  (CCP § 2025.420(b)(3).)  The video recording of Dr. Gravori’s deposition testimony, intended for possible use at trial, is to be postponed for two days after Defendant conducts a discovery deposition of Dr. Gravori. 

            Defendant is ordered to give notice.

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 14^th day of February 2023