Judge Barbara M. Scheper, Case Number: 19STCV31223, Date: 2023-08-10 Tentative Ruling

Judge: Barbara M. Scheper, Case: 19STCV31223, Date: 2023-08-10 Tentative Ruling

Case Number: 19STCV31223 Hearing Date: August 10, 2023 Dept: 30

Dept. 30

Calendar No.

Ortega vs. Frontier Communications Corporation, et. al., Case No. 19STCV31223

Tentative Ruling re: Defendants’ Motion for Protective Order

Defendants Frontier Communications Corporation, Frontier California, Inc., and Citizens Telecom Services Company LLC (collectively, Defendants) move for a protective order limiting the expert witness designations of Plaintiff Sonia Ortega (Plaintiff). The motion is granted.

“The court, for good cause shown, may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. The protective order may include, but is not limited to, one or more of the following directions . . . (6) That a party or a side reduce the list of employed or retained experts designated by that party or side under subdivision (b) of Section 2034.210.” (Code Civ. Proc., § 2034.250, subd. (b).)

“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.” (Gonzales v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.)

On November 28, 2022, Plaintiff served Defendants with an Expert Witness Designation, listing Jacqueline Nolan, Psy.D. as a retained expert. (Bernstein Decl. ¶ 2, Ex. A.) Below, the designation stated, “Plaintiff reserves the right to call any and all experts and/or healthcare providers that have been disclosed by the parties in discovery proceedings, to render expert testimony, including but not limited to the following,” and listed five physicians.

Defendants served Plaintiff with a Demand for Exchange of Expert Witness Information on June 12, 2023. (Friedman Decl. ¶ 3, Ex. 2.) On July 3, 2023, Plaintiff served Defendants with a second Expert Witness Designation, which removed Plaintiff’s prior retained expert and listed two new retained experts. (Bernstein Decl. ¶ 3, Ex. B.) It also listed nineteen additional non-retained experts, including district attorneys, employees of the Federal Trade Commission (FTC), multiple state Attorney Generals, and a United States District Court Judge.

Defendants’ current motion seeks a protective order prohibiting Plaintiff from designating the nineteen non-retained experts in her second designation. In her Opposition, Plaintiff states that she has de-designated and withdrawn eleven of the non-retained experts at issue. The remaining experts contested by Defendants are the following:

1. Mike Gatto (former Assemblyman)

2. Evan Goldsmith (Riverside County Deputy District Attorney)

3. Hoon Chun (Los Angeles County District Attorney)

4. Matthew Harrison Fine (Federal Trade Commission)

5. Miles Davenport Freemen (Federal Trade Commission)

6. Robert Jacob Quigley (Federal Trade Commission)

7. Steven Shih Young Wang (Los Angeles County District Attorney)

8. Barbara Chun (Federal Trade Commission)

Plaintiff states that these non-retained experts are attorneys who were involved in the FTC’s 2021 lawsuit against Defendants, Los Angeles-based FTC attorneys, and a California Assemblyman who held a hearing regarding customer complaints against Defendants. (Friedman Decl. ¶ 6; Plaintiff’s RJN, Ex. 2.) Plaintiff argues that the designated experts will provide information relevant to whether Plaintiff had reasonable cause to believe that the conduct she complained of was unlawful.

To establish her claim for whistleblower retaliation under Labor Code § 1002.5, subd. (b), Plaintiff must prove that she had “reasonable cause to believe that the information [in her complaints] discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.” (Lab. Code, § 1102.5, subd. (a).)

Plaintiff has failed to show that any of the contested experts would be able to provide admissible expert testimony relevant to her reasonable belief of unlawful activity. At most, Plaintiff’s opposition suggests that the proposed experts possess information relevant to whether Defendants’ alleged conduct constituted actual violations of a statute, rule, or regulation. However, that issue is not the proper subject of expert testimony. “[A]n expert is not permitted to give an opinion on questions of law or legal conclusions.” (City of Rocklin v. Legacy Family Adventures-Rocklin, LLC (2022) 86 Cal.App.5th 713, 728.) The issue of whether “the activity [complained of] actually would result in a violation or noncompliance with a statute, rule, or regulation . . . is a quintessentially legal question.” (Nejadian v. County of Los Angeles (2019) 40 Cal.App.5th 703, 719.) Accordingly, there is no indication that the non-retained experts at issue will be able to provide admissible, relevant testimony.

Furthermore, the Court agrees with Defendants that Plaintiff’s belated designation of these experts is unduly burdensome and oppressive. Plaintiff did not identify any of the experts to Defendants in discovery prior to her designation on July 3, 2023. (Bernstein Decl. ¶ 5.) The expert discovery cut-off is August 7, 2023. The burden of deposing the experts in this short timeframe, along with Plaintiff’s failure to show their relevance, shows good cause for the requested protective order.