Judge: Frank M. Tavelman, Case: 20STCV21468, Date: 2022-09-12 Tentative Ruling

Case Number: 20STCV21468    Hearing Date: September 12, 2022    Dept: A

EX PARTE APPLICATION FOR MOTION TO COMPEL AND STRIKE

(Ruling After Argument)

ALLEGATIONS:

Darius White ("Plaintiff") filed suit against Erick Contreras ("Contreras") and Fleet Car Lease, Inc. ("Fleet", and together, "Defendants") regarding a motor vehicle collision that resulted in Plaintiff's injury. 

PRESENTATION:

The Court received the two Ex Parte Applications filed by Defendants on September 6, 2022; and the opposition filed by Plaintiff on September 7, 2022. The Court has not received any reply. 

The Court heard oral arguments, and this ruling follows the oral arguments.

RELIEF REQUESTED:

Defendants move, ex parte, for an order (1) compelling Plaintiff’s compliance with Defendants’ Notice of Taking Deposition of Plaintiff Darius White on Oral Examination by Videotape with Demand to Produce Documents; (2) deeming that Plaintiff has waived any and all objections that plaintiff may have had to the Deposition Notice, including those based on privilege; and (3) granting a continuance of the trial date to the extent the court deems it appropriate and reasonably necessary to do so, to allow defendants to complete the depositions of plaintiff and plaintiff’s retained expert witnesses; or, in the alternative, shortening time for Defendants to file and serve a discovery sanction motion so that such motion may be heard on or before September 19, 2022, or another shortened date convenient for the Court.

Defendants move, ex parte, for an order to strike and exclude Plaintiff’s retained expert witnesses; or, in the alternative, for an order compelling Plaintiff to immediately produce his experts for deposition, produce all expert reports, writings, and materials to code; and extend Defendants’ deadline to submit their supplemental expert witness designation to the fourth day after the deposition of Plaintiff’s final expert witness.

ANALYSIS:

Ex Parte (Compel Deposition)

I.          LEGAL STANDARD

CRC Rule 3.1201 provides that a request for ex parte relief must be in writing and must include all the following:

1. An application containing the case caption and stating the relief requested;

2. A declaration in support of the application making the factual showing required under rule 3.1202(c);

3. A declaration based on personal knowledge of the notice given under rule 3.1204;

4. A memorandum; and

5. A proposed order.

    

   Pursuant to CRC Rule 3.1202(c), "[a]n applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte."

    

   II.        MERITS

    

   Defendants argue they gave notice for Plaintiff’s August 25, 2022 deposition via email on August 11, 2022; but that Plaintiff failed to serve objections, appear for his deposition, produce any of documents or things requested by the deposition notice, or provide any alternative dates on which Plaintiff is available for deposition. Defendants assert that they received an email from Plaintiff’s counsel on August 23, 2022 indicating that the deposition may not go forward and requested it be held on September 1st or 2nd and responded with concern that there were already four expert depositions scheduled on those dates; and Plaintiff’s counsel responded that the expert depositions on those dates would not be going forward either. Defendants assert that Plaintiff’s counsel then offered to redesignate expert witnesses for the purpose of strategically forcing a trial date and discovery continuance, which Defendants rejected.

    

   In opposition, Plaintiff’s counsel does not dispute this account, except to argue that they unexpectedly committed to other engagements that precluded the scheduled deposition from going through, and that Defendants’ counsel is to blame for refusing to accommodate new deposition dates.

    

   Plaintiff’s opposition did not dispute or even discuss Defendants’ contention that the dates of September 1st and 2nd were unworkable because they were already scheduled for multiple expert depositions; and that these expert depositions did not go forward because Plaintiff’s counsel did not check with their expert witnesses on that date. The details on this issue are instead provided in the opposition to the second Ex Parte Application to strike Plaintiff’s expert witnesses (“Ex Parte 2”), which the Court has also reviewed.

    

   In the Ex Parte 2 opposition, Plaintiff argues that Defendants did not consult with Plaintiff’s counsel before unilaterally noticing the expert deposition dates. The Court considers that Plaintiff did not submit any objection or notice that the White deposition would not be going through until two days before the scheduled deposition date; and did not notify Defendants that the four expert depositions would not be going through until the parties were discussing the dates of September 1 and 2 as alternate deposition dates for White. However, the Court also considers that the expert deposition notices were sent on August 19 for deposition dates less than two weeks later without an effort to consult Plaintiff’s counsel on their experts’ scheduling availability; and that the parties ultimately discussed the expert deposition issue only a few days after the notices were sent. Although Defendants assert that they served the deposition dates through email on August 15, the Court has only found proofs of service representing overnight service on August 19. The analysis does not change either way.

    

   Neither party presents a reasonable stance. Defendants should have consulted with Plaintiff’s counsel before noticing expert depositions. Defendants did not budge on those dates despite Plaintiff’s counsel asserting that they would not be available, and so the parties were prevented from rescheduling the White deposition to the now-useless September 1 and 2 dates. And Plaintiff bears the burden of accommodating a new deposition date for White, considering their last-minute cancellation of the previous deposition date.

    

   The Court finds that Defendants show good cause for ex parte relief.

    

   III.       CONCLUSION

    

   The Court thus grants the instant motion and orders the following: (1) Plaintiff is to comply with Defendants’ Notice of Taking Deposition of Plaintiff Darius White on Oral Examination by Videotape with Demand to Produce Documents; (2) Plaintiff has waived any and all objections that plaintiff may have had to the Deposition Notice, including those based on privilege; and (3) Plaintiff shall make all experts available no later than September 28, 2022, unless Plaintiff seeks leave from the Court for good cause.  The Defendant having declined at the last hearing a new trial date, the trial date remains, unless there is a stipulation to a continuance.  Any such continuance shall not re-open fact discovery, unless expressly stipulated.

    

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   Ex Parte (Strike Experts)

    

   I.          LEGAL STANDARD

    

   CRC Rule 3.1201 provides that a request for ex parte relief must be in writing and must include all of the following:

    

1. An application containing the case caption and stating the relief requested;

2. A declaration in support of the application making the factual showing required under rule 3.1202(c);

3. A declaration based on personal knowledge of the notice given under rule 3.1204;

4. A memorandum; and

5. A proposed order.

    

   Pursuant to CRC Rule 3.1202(c), "[a]n applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte."

    

   II.        MERITS

    

   The Court references its analysis in the first Ex Parte Application, supra. As Defendants failed to consult with Plaintiff’s counsel prior to noticing the expert deposition dates, the Court finds that they do not show good cause for either of the requested relief.

    

    

   III.       CONCLUSION

    

   The Court thus denies the instant motion.

    

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RULING:

The Court having reviewed the parties’ filed papers, as well as considered the oral arguments in court makes the following order:

ORDER

Defendants Erick Contreras and Fleet Car Lease, Inc.’s Ex Parte Application and Ex Parte Application came on regularly for hearing on September 9, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE EX PARTE APPLICATION TO COMPEL COMPLIANCE WITH DEPOSITION IS GRANTED.

THE EX PARTE APPLICATION TO STRIKE OR EXCLUDE EXPERT WITNESSES IS DENIED.

NO TRIAL CONTINUANCE IS GRANTED, UNLESS STIPULATED TO BETWEEN THE PARTIES.

IT IS SO ORDERED.

DATE:  September 12, 2022                           ____/s/  F.M. Tavelman___________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles