Judge: Audra Mori, Case: 20STCV07834, Date: 2023-03-08 Tentative Ruling

Case Number: 20STCV07834    Hearing Date: March 8, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

            Plaintiff Guadalupe Rivera (“Plaintiff”) filed this action against defendants Chalio Birrieria, et al. for damages relating to Plaintiff’s trip and fall on defendants’ property. 

            At this time, Defendants Maria Delgado dba Birrieria Chalio, Ferdo Brkic, Zdenka Brkic, and Brkic Trust (collectively, “Defendants”) move to compel the depositions of Plaintiff’s experts, Peter R. Francis, Ph.D. (“Francis”) and Jan Roughan (“Roughan”).  Defendants assert that they personally served Plaintiff’s counsel with deposition notices for Plaintiff’s experts, and that while Plaintiff objected to the notice, Plaintiff failed to provide alternative deposition dates for her experts.  Defendants contend they will be prejudiced if they are unable to depose Plaintiff’s experts, and they argue they will be forced to move to exclude Plaintiff’s experts from testifying at trial if they do not appear for their depositions.

            In opposition, Plaintiff’s counsel submits a declaration asserting that Francis and Roughan are not refusing to appear for deposition, but rather Plaintiff’s counsel had difficulty providing dates for her experts’ depositions.  Plaintiff, however, attests that on February 6, 2023, Defendant had the opportunity to depose Francis.  As to Roughan, Plaintiff states that she de-designate Roughan as Plaintiff’s expert.

            In reply, Defendants argue the motions should be granted and sanctions imposed. 

            “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.”  (CCP § 2034.410.)

CCP § 2025.450(a) provides, “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, 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, electronically stored information, or tangible thing 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, electronically stored information, or tangible thing described in the deposition notice.”  CCP § 2025.450 requires the Court to compel the deposition unless it finds a valid objection was served under §2025.410.

            As to moving nonparties to appear for deposition and answer questions, “A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.”  (Cal. Rules of Court, Rule 3.1346.) 

            Here, the Court cannot locate proof of service of the moving papers on Francis or Roughan.  The proof of service attached to the motions shows service only on Plaintiff’s counsel.  This is insufficient as Defendants do not establish that Plaintiff’s counsel was authorized to accept service of the motions to compel on behalf of Plaintiff’s experts. 

            The motions are therefore denied without prejudice.  The parties are ordered to meet and confer to attempt to determine whether these issues are moot considering Plaintiff’s counsel’s representations and to attempt resolve any outstanding issues without judicial intervention. 

Moving Defendants are 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 8^th day of March 2023