Judge Daniel S. Murphy, Case Number: 23STCV01764, Date: 2024-08-07 Tentative Ruling

On January 17, 2023, Plaintiffs Cornelia Rosales, Jose Juventino Rosales, and Jose Alfredo Rosales filed this landlord-tenant action against Defendant Vermont City Lights LP alleging uninhabitable conditions.

On July 10, 2024, Defendant filed the instant motion to compel Plaintiffs’ depositions. Plaintiffs filed their opposition on July 23, 2024. Defendant filed its reply on July 30, 2024.

“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).)

Defense counsel began inquiring as to Plaintiffs’ availability for deposition beginning on April 5, 2024. (McPhillips Decl. ¶ 4, Ex. A.) Plaintiffs’ counsel responded on April 7, 2024, stating that the parties could confer the following Monday. (Ibid.) Plaintiffs’ counsel did not reach out on Monday, and defense counsel sent a follow-up email on April 10, 2024. (Ibid.) Plaintiffs still did not respond, prompting Defendant to issue deposition notices on April 11, 2024. (Ibid.) Defense counsel apologized for the unilaterally-set dates and asked Plaintiffs to provide alternative dates. (Ibid.)

On April 12, 2024, Plaintiffs responded to the deposition notices, objecting on the grounds that the dates were unilaterally set, that the notices state the depositions will continue “day to day” despite the seven-hour limit, and that Plaintiffs are unavailable on the listed dates. (McPhillips Decl. ¶ 5, Ex. E-G.) In the response, Plaintiffs also stated they would not agree to continue the trial date, which at the time was set for June 4, 2024. (Ibid.)

On April 16, 2024, defense counsel sent another meet and confer email attempting to resolve the matter informally. (McPhillips Decl. ¶ 6, Ex. H.) Given the impending discovery cutoff, Defendant gave Plaintiffs until April 18, 2024 to respond before a motion would be filed. (Ibid.) Plaintiffs did not respond on April 18, 2024, prompting Defendant to file a motion to compel, along with an ex parte application to shorten the time for hearing the motion. (Ibid.) On April 23, 2024, the Court granted the ex parte application and continued the trial to September 24, 2024. (Id., Ex. K.)

Defendant thereafter took the motion to compel off calendar and emailed Plaintiffs on April 24, 2024, attempting once again to ascertain available dates for deposition. (McPhillips Decl. ¶ 7, Ex. L.) Plaintiffs again failed to respond, prompting a follow-up email on June 26, 2024. (Id., ¶ 8, Ex. M.) Plaintiffs ignored that communication as well, prompting another follow-up email on July 5, 2024. (Id., ¶ 8, Ex. N.) Plaintiffs also did not respond to that email. (Id., ¶ 8.)

Plaintiffs argue that the motion is procedurally improper because a motion to compel deposition only applies when the deponent “fails to appear for examination” (Code Civ. Proc., § 2025.450(a)), and Plaintiffs have not “failed to appear” because no deposition actually took place. Plaintiffs further contend that Defendant violated the Superior Court’s civility guidelines by unilaterally scheduling the depositions and failing to take into account the availability of Plaintiffs and their counsel. (See Guidelines for Civility in Litigation, Rule (e)(2).) During meet and confer on other cases concerning the same subject premises, Plaintiffs’ counsel expressed to Defendant that he was available for depositions on Fridays at 1pm. (Partiyeli Decl. ¶¶ 3-4.)

Plaintiffs’ argument overlooks the extensive history of Defendant’s attempts to ascertain Plaintiffs’ availability, beginning in April 2024. Plaintiffs ignored the majority of the communications from Defendant. When Defendant issued the deposition notices because Plaintiffs did not respond to prior communications, Defendant apologized for the unilateral dates and asked for alternative dates. Plaintiffs do not dispute any of these facts. The record easily reflects Defendant’s “reasonable consideration” for the availability of Plaintiffs and their counsel. (See Guidelines for Civility in Litigation, Rule (e)(2).)

Assuming Plaintiffs clearly indicated their availability on Fridays at 1pm[1], Plaintiffs also demanded that the depositions take place on a single day only. (See McPhillips Decl. ¶ 5, Ex. E-G.) Given that Defendants are entitled to depose each Plaintiff for up to seven hours (Code Civ. Proc., § 2025.290(a)), this would mean that the depositions could last up to 8pm on Fridays, which is highly impractical. Thus, if anything, Plaintiffs are the ones failing to account for Defendant’s schedule. Defense counsel was under no obligation to stipulate to this single limited timeframe.

b. Defendant Was Not Required to Hold a Deposition Before Filing This Motion

Plaintiffs cite no authority for their proposition that a motion to compel deposition cannot be filed until the deposing party actually holds the deposition. Plaintiffs made clear in their response to the deposition notice that they would not comply with the notice. The record also demonstrates that Plaintiffs ignored Defendant’s communications and refused to provide their availability. Plaintiffs offer no reason why this should not be considered a “failure to appear” for purposes of section 2025.450(a). Defendant is not required to expend time and resources holding three futile depositions before moving to compel Plaintiffs’ compliance with their discovery obligations.

Additionally, the Court has both inherent and statutory authority to make orders to ensure the orderly administration of justice. (See Walker v. Superior Court (1991) 53 Cal.3d 257, 266-67; Code Civ. Proc., § 128.) The Court has discretion to “establish the sequence and timing of discovery for the convenience of parties and witnesses and in the interests of justice.” (Code Civ. Proc., § 2019.020(b).) “Management of discovery lies within the sound discretion of the trial court.” (Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1061.) “Failing to respond or to submit to an authorized method of discovery” constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010(d).) Therefore, the Court has discretion to order the depositions even if such an order is not expressly authorized by section 2025.450(a).

Defendant’s motion to compel deposition is GRANTED. Plaintiffs Cornelia Rosales, Jose Juventino Rosales, and Jose Alfredo Rosales shall appear for their respective depositions within 15 days of this order.

[1] Defense counsel denies receiving any indication from Plaintiffs’ counsel about his availability on Fridays at 1pm. Plaintiffs’ counsel avers that he provided this information during meet and confer on other cases. (Partiyeli Decl. ¶¶ 3-4.) Thus, Plaintiffs do not appear to have clearly indicated their availability for depositions in this case. In any event, making one statement about availability does not justify ignoring all of the other communications from Defendant.

On January 17, 2023, Plaintiffs
Cornelia Rosales, Jose Juventino Rosales, and Jose Alfredo Rosales filed this
landlord-tenant action against Defendant Vermont City Lights LP alleging
uninhabitable conditions.

On July 12, 2024, Defendant filed
the instant motion to preclude improperly designated experts, to set the fees
of experts, and to extend the time for expert discovery. Plaintiffs filed their
opposition on July 23, 2024.

“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.” (Code Civ. Proc., § 2034.210.) “If any expert designated by a
party under subdivision (a) . . . has been retained by a party for the purpose
of forming and expressing an opinion in anticipation of the litigation or in
preparation for the trial of the action, the designation of that witness shall
include or be accompanied by an expert witness declaration under Section
2034.260.” (Id., § 2034.210(b).) This declaration must contain, inter
alia, “[a] representation that the expert has agreed to testify at the
trial.” (Id., § 2034.260(c)(3).) “[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 do any of the following: . . . (a) List that witness as
an expert under Section 2034.260 . . . (b) Submit an expert witness declaration
. . . .” (Id., § 2034.300.)

Plaintiffs’ expert designation lists
nine witnesses for which Plaintiff has failed to include a declaration stating
that the expert has agreed to testify at trial: Meier Fire Investigation; Guhan
Subramanian; Amy Chua; Carol Brown; Dr. Gladys Frankel; Dr. Jeffery Alan Sugar;
Mark R. Levitt; Eric Garcia; and Joseph Palanca. (McPhillips Decl., Ex. A.)
Plaintiffs do not address this in their opposition. Therefore, these witnesses
are precluded from testifying at trial.

“If a party desiring to take the
deposition of an expert witness under this article deems that the hourly or
daily fee of that expert for providing deposition testimony is unreasonable,
that party may move for an order setting the compensation of that expert.
Notice of this motion shall also be given to the expert.” (Code Civ. Proc., §
2034.470(a).) The expert or the party designating the expert shall provide the
following information: (1) proof of the ordinary and customary fee actually
charged and received by that expert for similar services provided outside the
subject litigation; (2) the total number of times the presently demanded fee
has ever been charged and received by that expert; and (3) the frequency and
regularity with which the presently demanded fee has been charged and received
by that expert within the two-year period preceding the hearing on the motion.
(Id., § 2034.470(c), (d).)

Defendant argues that several of
Plaintiffs’ designated experts have charged excessive fees and that Plaintiffs
have failed to provide the requisite supporting information. However, a motion
to set expert compensation must be noticed to the expert. (Code Civ. Proc., §
2034.470(a).) The information supporting the fees may be provided either by the
party designating the expert or the expert himself. (Id., § 2034.470(c),
(d).) Plaintiffs’ experts deny receiving any notice of the motion. (Partiyeli
Decl. ¶ 3.) Thus, Plaintiffs’ failure to provide information supporting the
claimed fees is not dispositive, because the experts themselves should have
been given notice of the motion and an opportunity to provide the requisite
evidence.

While the Court denies the motion for the
procedural defect of failing to notice the experts, the Court notes that the
fees do appear to be excessive on their face. (See Mtn. 3:23-4:4.)

While Defendant’s notice of motion
purports to move for an extension, Defendant provides no argument or analysis
on this point. Therefore, the Court does not reach this issue.

Defendant’s motion to set expert
fees and extend time for expert discovery is DENIED without prejudice.