Judge Erick L. Larsh, Case 2019-01063271 2023-08-18 Tentative Ruling

Judge: Erick L. Larsh, Case: 2019-01063271, Date: 2023-08-18 Tentative Ruling

Motion to Exclude Expert Testimony

The Motion to Exclude Expert Testimony brought by Defendants Tunnel Light, LLC (dba Columbia Yachts) and Vincent Valdes is denied.

The instant motion was filed by Defendants Vincent Valdes and Tunnel Light, LLC on April 7, 2023, based on the purported failure of Plaintiff and Cross-Complaint to produce John O’Donnell for deposition. (ROA No. 453.) The motion specifically requests an order pursuant to Code of Civil Procedure section 2034.300, subsection (d). (ROA No. 453.)

Pursuant to this provision, “on objection of any party who has made a complete and timely compliance with Section 2034.260, the 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 under Article 3 (commencing with Section 2034.410).” (Code Civ. Proc., §2034.300, subd. (d).)

Here, it is undisputed that the expert deposition of John O’Donnell proceeded on June 15, 2023. (¶13-¶15 of Supplemental Ernest Declaration [ROA No. 509]; See also ¶3, ¶7 and ¶28-¶30 of Nichols Declaration [ROA No. 536].)

Despite the above, moving Defendants filed a Supplemental Declaration on June 28, 2023, which asserts the motion should be granted, given only a half-day of deposition was provided. (¶13-¶18 of Supplemental Ernest Declaration [ROA No. 509].) Within the subsequently filed Reply, moving Defendants “do not dispute that O’Donnell was made available for deposition on June 15, 2023.” (Reply: 3:24-25 [ROA No. 553].) Rather, Defendants assert exclusion remains appropriate as they “were unable to complete O’Donnell’s expert witness deposition because O’Donnell and his Counsel abruptly left the June 15, 2023 deposition after only roughly four hours of testimony.” (Reply: 3:25-27 [ROA No. 553].) Defendants assert that, in only sitting for half a day, Plaintiff and Cross-Defendant “unreasonably fail[ed] to produce O’Donnell in good faith…” (Reply: 4:2-3 [ROA No. 553].)

The undisputed Declaration of Counsel Steven A. Nichols demonstrates, however, that Defense Counsel opted to schedule the deposition for a half-day, by setting the start time at 1:30 p.m. (¶3, ¶5-¶6 and ¶24 of Nichols Declaration; See also Exhibit 3 to Nichols Declaration [ROA No. 536].) Indeed, Plaintiff’s Counsel indicates that Mr. O’Donnell was offered for a full day deposition; however, Defense Counsel made the unilateral decision to set the deposition as a half-day deposition, beginning at 1:30 p.m. (Id.)

Given it is undisputed that Plaintiff and Cross-Defendant presented John O’Donnell for deposition and given it is undisputed that Defendants opted to set the Deposition to commence at 1:30 p.m., necessitating only a half-day, the motion is denied. There has been no unreasonable failure to make an expert available for deposition and, consequently, Code of Civil Procedure section 2034.300, subsection (d) does not apply.

Additionally, the motion is denied, as Defendants have made no showing of compliance with Code of Civil Procedure section 2034.260, as required. As noted above, exclusion occurs only upon an “objection [by] any party who has made a complete and timely compliance with Section 2034.260…” (Code Civ. Proc., §2034.300, subd. (d).) Defendants have not demonstrated they exchanged expert witness information, as required.

Within the Reply, Defendants request for the first time that the Court “treat its Reply as a Motion to Compel O’Donnell’s Expert Witness Deposition.” (Reply: 4:17-19 [ROA No. 553].) Similarly, Defendants request “an order compelling O’Donnell’s continued expert witness deposition.” (Id.)

This request is denied.

“A basic principle of motion practice is that the moving party must specify for the court and the opposing party the grounds upon which that party seeks relief.” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1125.) “As a general rule, the trial court may consider only the grounds stated in the notice of motion.” (Ibid.) “The purpose of these requirements is to cause the moving party to ‘sufficiently define the issues for the information and attention of the adverse party and the court.’” (Ibid.)

Additionally, “[i]t is elementary that points raised for the first time in a reply brief are not considered by the court.” (Magic Kitchen LLC v. Good Things Intern. Ltd. (2007) 153 Cal.App.4th 1144, 1161).

Plaintiff W.D. Schock Corp. seeks orders from the Court, deeming its Request for Admissions, Set Two, admitted. Additionally, Plaintiff seeks orders from the Court, compelling Defendants John Franke and Enviro-Holdings, LLC (dba One Design Composites) to provide responses, without objections to: (1) Request for Production, Set Two; and (2) Form Interrogatories, Set Two. Plaintiff additionally seeks an order compelling the production of responsive documents to Requests for Production, Set Two.

Finally, Plaintiff requests sanctions against Defendant and their counsel, in the amount of $6,365.00.

The Court is inclined to continue the Motion to Compel brought by Plaintiff W.D. Shock Corp. on July 12, 2023 (ROA Nos. 514 and 520), given the recent disbarment of Defense Counsel Gregory Ricks and resulting concerns regarding service. The Court requests that the parties appear at the hearing, prepared to discuss the length of the necessary continuance, as well as a continuance of trial.

On August 9, 2023, Defendant John Franke filed a Declaration with the Court, in a pro per capacity. (ROA No. 594). The Declaration indicates Mr. Franke recently became aware that his attorney (as well as the attorney for Enviro-Holdings) was disbarred on July 1, 2023. (¶2(A) and ¶20 of Franke Declaration.) This declaration, however, does not comply with Code of Civil Procedure section 2015.5, as it is not executed under penalty of perjury under the laws of the State of California. (Code Civ. Proc., §2015.5.) As a result, it is inadmissible. (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 612.)

Despite the same, an earlier filed Declaration by Mr. Franke, executed under penalty of perjury and filed in connection with a prior Ex Parte Application, indicates he confirmed that Mr. Ricks can no longer practice law. (¶4 of Franke Declaration (ROA No. 538).) Similar information is provided in a recent Declaration from Counsel Brianna Milligan, attached to a Motion to Continue Trial. (¶12 of Milligan Declaration and Exhibit 2 thereto [ROA No. 584].) The above documents are court records, subject to judicial notice pursuant to Evidence Code section 452, subsection (d). Additionally, the Court may take judicial notice on its own motion, of the State Bar Attorney Profile for Gregory Paul Ricks (Bar No. 140538), which indicates that, as of July 1, 2023, Mr. Ricks is not eligible to practice law in California. (See https://apps.calbar.ca.gov/attorney/Licensee/Detail/140538). This record is judicially noticeable as an item “not reasonably subject to dispute and…capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code §452, subd. (h).)

Given the above, service of the instant motions appears defective. While Plaintiff’s Counsel reasonably served the instant motion on the then-stated attorney of record for Defendants Franke and Enviro-Holdings, LLC, judicially noticeable documents demonstrate Mr. Ricks became ineligible to practice law, 11-days prior to the service of this motion. (ROA No. 520.) While service on Mr. Ricks prior to July 1st would unquestionably be appropriate, the service completed after disbarment appears insufficient. The Court is inclined to find that Defendants became unrepresented parties at the time of disbarment.

Notably, responding to discovery requests has been found to constitute the unauthorized practice of law. (Benninghoff v. Superior Court (2006) 136 Cal.App.4th 61, 69.) Additionally, responding to motions would unquestionably constitute the unauthorized practice of law, as it would effectively consist of the “holding out by a layman that he is practicing or is entitled to practice law.” (Bluestein v. State Bar (1974) 13 Cal.3d 162, 175, fn. 13.)

Based on the above, while Plaintiff completed service on Mr. Ricks, at the time in which this service was completed, Mr. Ricks was wholly incapable of responding on behalf of Defendants.

Additionally, while Mr. Franke has attempted to file an opposition to these motions – a fact which demonstrates his awareness of the pending motions – it is unclear whether he is properly in receipt of the motion itself. Moreover, “a corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145.) “It must be represented by licensed counsel in proceedings before courts of record.” (Ibid.)

Based on all of the above, there has been no clear showing the instant motions were properly served; however, as this lack of service is through no-fault of any party herein, the Court is inclined to continue the hearing, to permit corrected service.

Additionally, while trial is scheduled for September 11, 2023, the Court finds that the disbarment of Defense Counsel constitutes sufficient “good cause” to justify a continuance.