Judge: Daniel S. Murphy, Case: 22STCV27008, Date: 2024-09-13 Tentative Ruling

Case Number: 22STCV27008    Hearing Date: September 13, 2024    Dept: 32

BACKGROUND

            On August 19, 2022, Plaintiff Jane Dhillon filed this action against Defendants 8715 Burton Tower, Inc. and A-Ju Realty, Inc., asserting causes of action for (1) negligence, (2) breach of contract, (3) breach of the implied warranty of habitability, (4) constructive eviction, and (5) violation of L.A. Municipal Code section 45.33.

            On August 16, 2024, Defendants filed the instant two motions to compel Plaintiff’s experts, Drs. Shakil Saghir and Ronald Simons, to appear for deposition. Plaintiff filed her oppositions on August 30, 2024. Defendants filed their reply on September 6, 2024.

LEGAL STANDARD

“On receipt of an expert witness list from a party, any other party may take the deposition of any person on the list.” (Code Civ. Proc., § 2034.410.) “If, after service of a deposition notice, a party to the action . . . without having served a valid objection under Section 2025.410, fails to appear for examination . . . 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 … described in the deposition notice.” (Code Civ. Proc., § 2025.450(a).)

DISCUSSION

I. Factual Background

On May 6, 2024, Plaintiff served her Expert Witness Designation, designating Drs. Saghir and Simon as experts to testify on the causation of Plaintiff’s injuries. (Kirschen Decl. ¶ 4, Ex. A.) On May 13, 2024, Defendants served a Notice of Taking Expert Deposition on Plaintiff, scheduling the depositions of Drs. Saghir and Simons for May 28, 2024. (Id., ¶ 5, Ex. B.) Because Plaintiff failed to produce all of the documents requested in the deposition notice, the deposition could not proceed on the scheduled date. (Id., ¶ 6.) After Plaintiff did not agree to produce the experts for deposition prior to the original trial date of June 11, 2024, the trial was continued to October 15, 2024. (Ibid.)

On July 1, 2024, Defendants served a second Notice of Taking Expert Deposition, scheduling the depositions of Drs. Saghir and Simons for July 24, 2024. (Kirschen Decl. ¶ 7, Ex. D.) On July 19, 2024, Plaintiff notified Defendants that the depositions could not occur on July 24, 2024 due to the recent withdrawal of her counsel. (Id., Ex. E.) Plaintiff requested a continuance of the depositions and the trial. (Ibid.) Defendants initially refused to continue the depositions, but after Plaintiff reiterated that she was attempting to seek new counsel and had not yet received her case file from her prior attorney, Defendants asked Plaintiff to provide alternative dates by July 23, 2024. (Ibid.) On July 23, 2024, Plaintiff responded that she was still attempting to acquire new counsel and her case file, and proposed a deposition date of November 24, 2024 and a continued trial date of February 15, 2025. (Ibid.) Defendants responded that this was unacceptable because the deposition date would be after the current trial date, and the trial could not be continued any further. (Ibid.)

Plaintiff’s new counsel substituted in on August 16, 2024. (Stupak Decl. ¶ 4.) That day, Plaintiff’s counsel wrote to request a meet and confer to resolve the instant motions. (Id., Ex. 1.) Plaintiff’s counsel met and conferred with defense counsel on August 22, 2024 via Zoom. (Id., ¶ 5.) On August 28, 2024, Plaintiff’s counsel notified defense counsel that the experts would be available on September 16, 2024. (Id., Ex. 2.)

II. Premature

            Plaintiff argues that the motions are premature because the expert designation deadline was extended to August 26, 2024, and the expert discovery cutoff is September 30, 2024. However, an expert deposition may be taken “[o]n receipt of an expert witness list from a party.” (Code Civ. Proc., § 2034.410.) It is undisputed that Plaintiff served her expert designations on May 6, 2024. (See Kirschen Decl. ¶ 4, Ex. A.) Therefore, Defendants were entitled to depose the listed witnesses at any point afterwards. Plaintiff cites no authority for the proposition that Defendants must wait until the expert designation deadline or discovery cutoff. Therefore, the motion is not premature.  

III. Meet and Confer

            A motion to compel deposition must be accompanied by a declaration demonstrating an effort to meet and confer. (Code Civ. Proc., § 2025.450(b)(2).) The record above shows that Defendants met and conferred with Plaintiff after each of the two deposition notices in May and July 2024. Plaintiff’s new counsel also confirms that Defendants met and conferred over Zoom after the recent substitution in August 2024. (Stupak Decl. ¶ 5.) Therefore, Defendants have satisfied the meet and confer requirement. 

IV. Mootness

            Lastly, Plaintiff argues that the motions are moot because she has since confirmed that her experts are available for deposition on September 16, 2024. (See Stupak Decl., Ex. 2.) However, the deposition notices were first served back in May 2024. After months of delay, an order compelling the depositions is warranted to ensure timely discovery.

CONCLUSION

            Defendants’ motions to compel deposition are GRANTED. Dr. Shakil Saghir is ordered to appear for deposition on September 16, 2024 at 10am. Dr. Ronald Simons is ordered to appear for deposition on September 16, 2024 at 2pm. Deponents shall produce all documents requested in the deposition notices. 

Sanctions are denied as the parties acted with substantial justification.