Judge Audra Mori, Case 21STCV33090 2022-09-06 Tentative Ruling

Petitioner Lynn Harris (“Petitioner”) filed this this petition to commence and enforce discovery against Respondent Interinsurance Exchange of the Automobile Club (“Respondent”) in connection with an uninsured motorist claim. The matter has been dismissed pursuant to a Request for Dismissal filed by Petitioner.

At this time, Respondent moves for an order requiring Petitioner to pay $850 of deposition fees owed to Respondent’s retained expert witness, Dr. Luke Macyszyn, M.D. (“Dr. Macyszyn”), and imposing monetary sanctions against Petitioner’s counsel. Petitioner opposes, and Respondent filed a reply.[1]

CCP § 2034.450(c) is clear that “If the deposition of the expert takes longer than anticipated, the party giving notice of the deposition shall pay the balance of the expert's fee within five days of receipt of an itemized statement from the expert.” (Emphasis added.) Normally, the party who notices the expert's deposition must pay the expert's entire fee. (CCP § 2034.430(b).)

Respondent provides that the parties reached a settlement in this matter on May 31, 2022, and prior to the settlement, Petitioner deposed Dr. Macyszyn. Respondent asserts the deposition went longer than expected, and Petitioner’s counsel agreed to pay for the additional fees owed to Dr. Macyszyn. Respondent, thus, seeks an order requiring Petitioner to pay Dr. Macyszyn’s outstanding deposition fee, with interest.

In opposition, Petitioner contends that pursuant to the settlement agreement entered into between the parties, the parties each agreed to bear their own costs. Further, Petitioner asserts that a dismissal was entered in this matter on August 24, 2022, so the Court lacks jurisdiction to determine this matter. Lastly, Petitioner asserts that Dr. Macyszyn was not paid due to his own misconduct, and that Petitioner should be awarded sanctions.

In reply, Respondent contends that the dismissal does not void the Court’s authority to hear this motion because this matter concerned only a petition to compel arbitration. Additionally, Respondent asserts that the settlement agreement does not affect Dr. Macyszyn’s right to recover the deposition fee owed by Petitioner.

After Respondent filed the instant motion Petitioner filed a Request for Dismissal that was signed and entered on August 24, 2022, dismissing the action with prejudice.[2] “The dismissal with prejudice of the lawsuit deprived the superior court of subject matter jurisdiction. Absent a pending lawsuit, a court cannot issue judgments or orders. A superior court has subject matter jurisdiction over most original ‘causes.’ A cause commences with the filing of an action or special proceeding. A dismissal terminates an action. A superior court thereafter has no subject matter jurisdiction to grant relief other than costs and fees as appropriate. A court may also entertain a motion to vacate on grounds of mistake, excusable neglect and so forth. The settlement language purporting to vest the trial court with retained jurisdiction after the dismissal was a nullity: Subject matter jurisdiction cannot be conferred by consent, waiver or estoppel.” (Hagan Engineering, Inc. v. Daniel G. Mills (2003) 115 Cal.App.4th 1004, 1007-08 [emphasis added; citations omitted.)

The Court, thus, retains jurisdiction to award fees and costs following a voluntary dismissal where appropriate. (Mesa Shopping Center-East, LLC v. O’Hill (2014) 232 Cal.App.4th 890, 898 [finding trial court had jurisdiction to rule on motion for attorney fees]; see also Brown v. Desert Christian Center (2011) 193 Cal.App.4th 733, 738 [court had jurisdiction to award costs under CCP § 1032 to the defendant following voluntary dismissal of action], and Catello v. I.T.T. Gen. Controls (1984) 152 Cal.App.3d 1009, 1012-13 [same].)

In this case, Respondent is moving for an order requiring Petitioner to pay Dr. Macyszyn’s deposition fee as Petitioner represented he would do at the deposition. The subject fees were incurred by Petitioner, and Petitioner is obligated to pay the fees pursuant to statute. (CCP §§ 2034.430(b), 2034.450(c).) This postdismissal matter, therefore, involves collateral statutory rights, and the Court has jurisdiction to determine the relevant rights. (See Manhan v. Gallagher (2021) 62 Cal.App.5th 504, 509 [“When a postdismissal or postjudgment motion involves collateral statutory rights, then the court may retain jurisdiction to determine and enforce those rights.”].) This would also include the right to decide a request for sanctions. (Id.)

Therefore, the Court has jurisdiction to hear and decide this motion dealing with an ancillary issue that has no bearing on the finality of the underlying dismissal. (Id., at 509-10.) To be clear, the Court is not hearing this motion pursuant to CCP § 1032, which concerns costs awarded to a prevailing party, as alluded to by Petitioner.

Code of Civil Procedure § 2034.450(c) provides, “If the deposition of the expert takes longer than anticipated, the party giving notice of the deposition shall pay the balance of the expert's fee ….” Here, the evidence shows that Dr. Macyszyn’s deposition went longer than the hour for which Petitioner paid, and Petitioner’s counsel expressly stated that it would pay Dr. Macyszyn for the excess time.[3] Although Petitioner contends that Dr. Macyszyn was not paid due to his own misconduct because Dr. Macyszyn asserted numerous frivolous objections, and that Petitioner intended to file a motion to compel further pertaining to Dr. Macyszyn’s deposition and expert fees, Petitioner apparently did not file such a motion. Nor does Petitioner now provide any authority showing that Petitioner can withhold the statutory fees Dr. Macyszyn is entitled to based on the contention that counsel’s objections at Dr. Macyszyn’s deposition were frivolous. The Court has further reviewed the deposition transcript excerpt submitted by Petitioner and does not find that Dr. Macyszyn’s conduct prevented the deposition from proceeding such that Dr. Macyszyn should now not receive the fees Petitioner agreed to pay. Finally, to the extent Petitioner argues that the parties agreed to bear their own costs in the settlement agreement, as stated above, the subject expert fees were incurred by Petitioner, not Respondent. And Dr. Macyszyn was not a party to that agreement. However, Respondent provides no authority for the request for interest on the fees owed.

Based on the foregoing, Petitioner is ordered to pay $850 to Respondent’s counsel for Dr. Macyszyn’s expert deposition fee within five (5) days.

Respondent requests sanctions pursuant to CCP § 2023.030. This statute provides: “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.”

However, in this case, Respondent argues at greater length that Petitioner should be sanctioned because Petitioner failed to provide “Code-compliant responses to those identified interrogatories.” (Mot. at p. 5:12.) This matter does not concern responses to interrogatories. Thus, Respondent does not correctly or specifically identify and articulate the basis for its request for sanctions. In light of this, and the fact that Petitioner will address its past failure by paying the $850 in fees promptly, the court will not additionally impose sanctions.[4] The request for monetary sanctions is denied.

[1] Petitioner’s opposition was due by August 23, 2022, but Petitioner untimely filed it on August 25, 2022. Respondent objects to the untimely filing in its reply. In the absence of any showing of prejudice to Respondent, and because Respondent was otherwise able to address Petitioner’s arguments, the Court exercises its discretion to consider the opposition.

[2] Petitioner then filed the untimely opposition after the dismissal was entered.

[3] The deposition transcript shows the following exchanges between Petitioner’s counsel and Dr. Macyszyn:

MR. RYAN: Okay, thanks. That's all the questions I have and I reserve the right to reopen this deposition, subject to the areas we discussed on the motion to compel that Dr. Macyszyn did not answer.

THE WITNESS: Well, that's -- you stated that incorrectly, I did answer them, number one. Number two, Andrew, you -- received a check from your office for an hour. We are 35 minutes over an hour.

MR. RYAN: Okay. Well, I got a lot of objections too but I'll pay you for the balance. That's fine.

(Mot. Exh. A at p. 74:13-25.)

[4] Were the court unable to assess the $850 fee due to the dismissal of the case, the same might be available as sanctions.