Judge: Jon R. Takasugi, Case: 19STCV34046, Date: 2023-01-04 Tentative Ruling

Case Number: 19STCV34046    Hearing Date: January 4, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendant’s application is GRANTED IN PART, DENIED IN PART.

On 9/24/2019, Plaintiffs Jennifer Elachkar and Deva Shaufuss (collectively, Plaintiffs) filed suit against Kia Motors America, Inc. (Defendant), alleging violations of the Song-Beverly Act.

Now, Defendant moves ex parte for an order precluding Plaintiffs’ expert (Darrell Blasjo) from attending Defendant’s expert’s (Vince Petrangelo) deposition.

Discussion

            Defendant argues that Plaintiff’s expert Mr. Blasjo improperly appeared by remote electronic means during Defendant’s expert’s scheduled deposition.

            The Court agrees in part. As noted by Plaintiff in opposition, third-parties are not barred per se from attending a deposition. CCP section 2025.420, subdivision (b)(12) provides that a protective order can be sought so “[t]hat designated persons, other than the parties to the action and their officers and counsel, be excluded from attending the deposition.” This implicitly establishes that in the ordinary course of conduct, persons other than the parties to the action, officers, and counsel, are allowed to appear, and a protective order must be sought to establish otherwise.

CRC rule 3.1010 similarly states that “[a]ny party, other than the deponent, or attorney of record may appear and participate in an oral deposition by telephone, videoconference, or other remote electronic means….” However, rule 3.1010 clearly conditions this appearance on compliance with two requirements:

1)  Written notice of such appearance is served by personal delivery, e-mail, or fax at least five court days before the deposition;

(2)  The party so appearing makes all arrangements and pays all expenses incurred for the appearance.

  Here, there is no indication that Plaintiff provided written notice by personal delivery at least five court days before the deposition. Accordingly, Mr. Blasjo’s appearance was improper.

However, if Plaintiff were to comply with rule 3.1010’s requirements, Mr. Blasjo could properly appear (assuming Defendant did not establish good cause for the Court to order otherwise).

 As such, the Court disagrees with Defendant that Mr. Blasjo is barred from appearing at the deposition under any circumstances, or that California law does not permit an expert witness to attend a deposition unless he or she is the deponent. Rather, the wording of CCP section 2025.420, subdivision (b)(12), which does not specify who can attend, makes clear that anyone—including an expert witness—can attend a deposition unless the Court issues a protective order otherwise. Rule 3.1010 is consistent with this interpretation, in that by requiring advance notice of attendance, other parties are provided with an opportunity to seek such a protective order in advance of the deposition.

To the extent that Defendant now seeks a protective order barring Mr. Blasjo’s future appearance, Defendant did not set forth any substantive argument or evidence that could justify this order. In Ms. Lehrman’s declaration, she indicates that Mr. Blasjo’s appearance was improper because Plaintiff should have been aware that his unnoticed appearance would result in a suspension of the deposition. However, the fact that Plaintiffs “should have known in advance this situation would need to be addressed but never gave Notice, either formally or informally” is insufficient to show that Mr. Blasjo should now be barred from appearing at a future deposition, even if proper notice is provided. (Lehrman Decl., ¶ 4.) As such, the Court must deny the request for a protective order, without prejudice.

Based on the foregoing, Defendant’s application is granted in part, denied in part.

It is so ordered.

Dated:  January    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

            Due to Covid-19, the court is strongly discouraging in-person appearances.  Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk.  The court encourages the parties wishing to argue to appear via L.A. Court Connect.  For more information, please contact the court clerk at (213) 633-0517.  Your understanding during these difficult times is appreciated.