Judge: Daniel S. Murphy, Case: 20STCV40043, Date: 2022-08-15 Tentative Ruling

Case Number: 20STCV40043    Hearing Date: August 15, 2022    Dept: 32

BACKGROUND

            On October 19, 2020, Plaintiff Pixior, LLC filed this action against Defendant Cojecto, alleging: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) open book account; (4) account stated; (5) unjust enrichment; and (6) declaratory relief. The lawsuit stems from the following facts.

            In July 2020, Plaintiff and Defendant entered into a written agreement whereby Plaintiff was to provide Defendant with approximately 50,000 square feet of warehouse space for storage and related facility access. Plaintiff claims that Defendant breached this agreement by failing to pay for the space provided and vacating the premises without the requisite notice. Plaintiff claims that Defendant owes $150,000. Defendant disputes that it was required to pay the full $150,000 on the grounds that Plaintiff failed to provide the 50,000 square feet as agreed.    

            The parties exchanged a demand for expert witnesses on June 6, 2022. On June 28, 2022, Defendant served its list of proposed expert witnesses: Kenneth Ackerman, Joseph Michaels, and Jo-anne Daniels. On July 8, 2022, Plaintiff served notices of deposition for each of the listed experts, set for July 20 and 21. On July 20, Defendant informed Plaintiff that Defendant only intended to proceed with one expert, Ackerman. Defendant also informed Plaintiff that Ackerman could not be deposed on July 21 and proposed an alternate date of July 25. Plaintiff’s counsel was unavailable on July 25. The parties were subsequently unable to agree on another date for the deposition.

            On July 22, 2022, Plaintiff filed the instant motion to exclude Defendant’s expert witnesses from trial for their failure to appear at the noticed depositions.   

LEGAL STANDARD

            “[T]he trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to . . . [m]ake that expert available for a deposition . . . .” (Code Civ. Proc., § 2034.300, subd. (d).)

DISCUSSION

            The record does not indicate that Defendant unreasonably failed to make its expert available for deposition. Plaintiff is the one who unilaterally set Ackerman’s deposition for July 21, 2022, close to the cutoff of August 1. (See Mtn. 3:19-27.) Defendant proposed an alternative date of July 25, but Plaintiff’s counsel was unavailable. (Id., 4:19-22.) Plaintiff complains that Defendant only proposed one alternative date, but that does not equate to evading the deposition. The deposition would have taken place had Plaintiff’s counsel been available on that date. Defendant also expressed that Ackerman would be available on a date other than August 3-5. (Reply 4:8-11.) There is no indication that Defendant refuses to produce Ackerman for deposition. Rather, it appears the primary issue is the parties’ inability to agree on a date or find mutual availability.

CONCLUSION

            Plaintiff’s motion to exclude witness is DENIED. Kenneth Ackerman is to appear for deposition within 30 days of this order.