Judge Audra Mori, Case 20STCV17372 2022-09-21 Tentative Ruling

Plaintiff Oscar Roberts (“Oscar”) and Emily Roberts (“Emily”) (collectively, “Plaintiffs”) filed the instant action against defendants L.A. Arena Company, LLC, et al. for injuries relating to Oscar’s slip and fall on a liquid substance on the floor of a restroom on defendants’ property. The operative Third Amended Complaint alleges causes of action for negligence and premises liability on behalf of Oscar against defendants, and a cause of action for loss of consortium by Emily against defendants.

At this time, ABM Industry Groups, LLC, erroneously sued as ABM Industries Incorporated, and L.A. Arena Company, LLC (collectively, “Defendants”) move for an order quashing Plaintiff’s notice of deposition of John Brault, M.S. (“Brault”), or alternatively, a protective order precluding Plaintiff’s from deposing Brault.

On August 12, 2022, Plaintiffs served a notice of taking the deposition of Brault, who Defendants assert is their non-designated expert consultant, and who filed a declaration in support of Defendants’ motions for summary judgment. Defendants served written objections to Plaintiffs’ deposition notice, and thereafter filed the instant motion.

Defendants argue the deposition notice goes beyond the scope permitted under St. Mary Medical Center v. Sup. Ct. (1996) 50 Cal.App.4th 1531, because Plaintiffs are utilizing it to turn the subject motion for summary judgment proceedings into a mini-trial. Defendants argue that there are no legitimate questions regarding the foundation of Brault’s opinions that would warrant Plaintiffs deposing Brault about his declaration submitted with Defendants’ motions for summary judgment. Additionally, Defendants contend that the deposition notice seeks disclosure of information protected from disclosure by the attorney work-product doctrine because Brault is Defendants’ consultant.

In opposition, Plaintiffs contend they are entitled to depose Brault because in Brault’s declaration submitted with Defendants’ motions for summary judgment there are factual questions regarding this matter that raise issues as to the foundation for Brault’s opinions. Plaintiffs contend they have a right to depose Brault because foundational information is not included in his declaration, and Plaintiffs contend that Brault makes many unsupported allegations that have no basis in fact.

In reply, Defendants contend that Plaintiff’s arguments are insufficient to establish a basis to depose a non-designated expert consultant. Defendants aver that Brault has the background, training, and experience to provide an expert opinion in the instant premises liability action.

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:”

(5) That the deposition be taken only on certain specified terms and conditions.

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.”

“Unless otherwise limited by order of the court in accordance with [the discovery statutes], any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action ... if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action....” (See Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012-13.) “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement....’ [Citation.] Admissibility is not the test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Id. at 1013.) “Moreover, even were the questions designed to elicit irrelevant evidence, irrelevance alone is an insufficient ground to justify preventing a witness from answering a question posed at a deposition.” (Id. at 1014.)

Here, Defendants assert that Plaintiffs’ deposition notice violated CCP § 2034.010 et seq., because the parties have not yet designated and exchanged experts pursuant to the statutes governing expert discovery. The scheme for designation and discovery of expert witnesses is governed by CCP § 2034.010 et seq. CCP § 2034.210 states that “After the setting of the initial trial date for the action, any party may obtain discovery by demanding that all parties simultaneously exchange information concerning each other's expert trial witnesses…” “A party shall make this demand no later than the 10th day after the initial trial date has been set, or 70 days before that trial date, whichever is closer to the trial date.” (CCP § 2034.220.) “The 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.” (Id. § 2034.230(b).) “On receipt of an expert witness list from a party, any other party may take the deposition of any person on the list.” (Id. § 2034.410.)

Plaintiffs, in opposition, do not dispute there are seeking Brault’s deposition outside the statutory procedures of CCP § 2034.010 et seq.; rather, Plaintiffs contend they are entitled to take Brault’s deposition under St. Mary Medical Center v. Sup. Ct. (1996) 50 Cal.App.4th 1531 (“St. Mary”). Defendants, however, contend that Plaintiffs’ deposition notice of Brault is a misuse of St. Mary, which Defendants contend allows deposing a non-designated expert where there are objective facts presented that create a significant question regarding the validity of the expert’s affidavit or declaration.

In St. Mary, the Court of Appeal addressed “whether or not the provisions of Code of Civil Procedure section 2034 preclude depositions of experts who are utilized in connection with summary judgment or summary adjudication proceedings if there has not yet been an exchange of experts pursuant to that section.” (50 Cal.App.4th 1533-34, footnote omitted.) The Court “conclude[d] that where a party presents evidence that raises a significant question relating to the foundation of an expert's opinion filed in support of or in opposition to a motion for summary judgment or summary adjudication, a deposition limited to that subject should be allowed.” (Id. at 1534.)

The defendants in St. Mary argued that the plaintiff's expert's declaration was “nonsensical and relied on an improper hypothetical. In order to establish that Dr. Eber's [the plaintiff's expert] opinions are not based on the facts which are the basis of this lawsuit, it is necessary to take his deposition so that an adequate reply to [real parties'] opposition may be prepared.” (Id. at 1535.) Particularly at issue in St. Mary was whether a certain doctor, Dr. Waider, was actually involved in the procedure allegedly causing the plaintiff's injury as contended by the plaintiff's expert or if the expert’s reference to him was mistaken. (Id. at 1536.) Significantly, the Court noted “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.” (Id. at 1538.) However, the Court went on to acknowledge that “[o]n 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.”[1] (Id.) The Court then determined that that in proper circumstances a party to a summary proceeding should be allowed to limited discovery. (Id. at 1538-39.) In particular, “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.” (Id. at 1540.) Because the defendants presented information to the court “from which a serious question arose about whether or not [the plaintiff’s expert’s] declaration may have been factually incorrect,” the Court held it an abuse of discretion to deny the motion under the circumstances presented. (Id. at 1540.)

Accordingly, in order to establish that taking Brault’s deposition is proper, Plaintiffs must present objective facts “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.” (Id. at 1540-41.)

Plaintiffs contend that Brault’s declaration poses serious foundational questions “like for example that Mr. Brault is a biomechanic and opines that a level floor would not pool water: ‘there are no areas where the water would likely pool, as the entire floor seemed completely level with no variance whatsoever.’ ” (Opp. at p. 2: 14-16, emphasis omitted.) Further, Plaintiffs assert there is no way to tell from the relevant sweep sheet logs when the bathrooms were inspected or cleaned, which also raises serious foundational questions as to Brault’s declaration.

Plaintiffs present no objective facts to impeach the foundational basis of Brault’s declaration. Plaintiffs primarily take issue with Brault’s opinions and conclusions regarding the slip and fall incident and Defendants’ restrooms. (See Opp. at p. 5:17-23.) Unlike the petitioners in St. Mary, Plaintiffs identify no objective evidence demonstrating that Brault relied on incorrect facts in forming any of his opinions. To the extent Plaintiffs disagree with Brault’s opinions express in the declaration, they may submit their own competent evidence to dispute it in opposition to Defendants’ motions for summary judgment. Plaintiffs, however, fail to establish they should be allowed to depose Brault simply because their subjective position is that Brault’s declaration expresses an unreasonable opinion. Additionally, the cleaning logs submitted by Plaintiffs are not so illegible as contended by Plaintiffs to find that Brault’s opinions based on the cleaning logs pose serious foundational issues regarding his declaration. (Opp. Exh. C.) Furthermore, although Plaintiff’s contend that Brault is a “biomechanic” and not a safety engineer, so his deposition is necessary to establish his qualification as an expert, Brault’s declaration is sufficient to assess his qualifications to opine on the relevant matters at issue. (Opp. Exh. A, Brault Decl. ¶¶ 1-3.) Plaintiff has failed to present evidence creating a serious question about the facts or foundation upon which Brault’s declaration is based that requires his deposition.

Based on the foregoing, Defendants’ motion is granted. Plaintiffs’ notice of taking Brault’s deposition is quashed, Mot. Exh. A), and the deposition is precluded from going forward.

Hon. Audra Mori

Judge of the Superior Court

[1] The Petitioners in St. Mary’s were defendants in the underlying case, and they moved for summary judgment. They sought to depose the plaintiff’s expert, Dr. Eber, to show that he mistakenly referenced Dr. Waider as being involved in the procedure at issue. The court observed, “While counsel could have presented a reply declaration from Dr. Waider to that effect, it would have been contradictory to the declaration of Dr. Eber and the trial court would have been required to conclude that a triable issue of fact existed, at least on that issue,” which might cause the defeat of Defendants’ own motion. (St. Mary, 50 Cal.App.4th at 1540.) Here, Plaintiff is in a different position. Plaintiff is opposing the motion for summary judgment, and thus, if an opposing declaration creates a triable issue of fact, Plaintiff does not risk the same consequences.