Judge Lee S. Arian, Case Number: 21STCV10790, Date: 2023-11-06 Tentative Ruling

This action arises from a motor vehicle accident that occurred on June 6, 2019. On March 19, 2021, Plaintiff Jhon E. Gonzalez-Guerrero (“Plaintiff”) filed a complaint against Defendants Allen D. Ye (“Defendant”) and Does 1 to 50, alleging a single cause of action for negligence.

On August 3, 2022, Defendant filed an ex parte application to continue trial from September 16, 2022 to January 13, 2023 or as soon thereafter as may be available on the Court’s calendar. On August 4, 2022, after hearing, the Court denied Defendant’s ex parte application to continue trial and all trial related dates and indicated that “[a] motion to extend or reopen discovery must be filed as a noticed motion.” (08/04/22 Minute Order.)

On August 5, 2022, Defendant filed a motion to continue trial and all trial related dates. On August 31, 2022, after hearing oral argument, the granted Defendant’s motion in part. The Court continued jury trial from September 16, 2022, to November 14, 2022 and stated that “[a]ll discovery and motion cut-off dates remain cut off and related to the trial date of 09/16/2022, except for the completion of expert discovery and the previously noticed deposition of Plaintiff.” (08/31/22 Minute Order.)

On October 31, 2022, the Court granted Defendant’s ex parte application to continue trial to allow Defendant to obtain new counsel. The Court’s October 31, 2022, Minute Order provides that the trial date related dates were not continued and remained related to the November 14, 2022 trial date; however, the Court continued jury trial from November 14, 2022, to March 23, 2023. (10/31/22 Minute Order.)

On January 9, 2023, Defendant filed a motion to continue the trial date and FSC date. On February 9, 2023, after hearing oral argument, the Court granted Defendant’s motion and continued trial from March 23, 2023 to April 24, 2023 and stated that “[a]ll pretrial deadlines including discovery and motion cut-off dates are based on the new trial date.” (02/09/23 Minute Order.)

On April 5, 2023, Defendant filed ex parte application for an order compelling Plaintiff’s second deposition session, continuing the trial date, continuing the FSC date, and all dates and deadlines according to the new trial date.

On April 6, 2023, the Court continued jury trial from April 24, 2023, to January 25, 2024. (04/06/23 Minute Order.) The Court’s order provides that counsel’s request to extend/continue discovery by ex parte application could not be granted and that counsel could reserve a noticed motion to extend or reopen discovery. (Id.)

On November 6, 2023, Plaintiff and Defendant submitted to the Court’s tentative ruling which granted Defendant’s Motion for an Order Reopening Discovery for the Limited Purpose of: (1) hearing Defendant’s motion to compel Plaintiff to appear for a second deposition; (2) entry of associated orders with the motion to compel, including any order compelling Plaintiff to appear for a second deposition session; and (3) if the motion to compel is granted, for Plaintiff to appear at the second deposition session. (11/06/23 Minute Order.) The Motion for an Order Reopening Discovery for a Limited Purpose was made on the grounds that “Plaintiff sandbagged [Defendant] by disclosing . . . substantial urological complaints on the eve of trial and after discovery closed.” (11/06/23 Minute Order.)

On November 15, 2023, Defendant filed and served the instant Motion to Compel Plaintiff’s Second Deposition (the “Motion”). Defendant seeks a second deposition of Plaintiff “limited to Plaintiff’s medical treatment after the first deposition session in October 2022, and will focus primarily on Plaintiff’s newly alleged urological complaints.” (Motion, pp. 1:27-2:1.) Defendant argues that good cause exists to compel a second deposition of Plaintiff.

On November 30, 2023, Plaintiff filed and served an opposition to the Motion. On December 12, 2023, Defendant filed and served a reply brief.

“For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) Generally, all unprivileged information that is relevant to the subject matter of the action is discoverable if it would itself be admissible evidence at trial or if it appears reasonably calculated to lead to the discovery of admissible evidence. (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 711.)

“[A] natural person may be deposed only once during the run of the litigation.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 254.) “Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice . . . may take a subsequent deposition of that deponent.” (Code Civ. Proc., § 2025.610, subd. (a).) “Notwithstanding subdivision (a), for good cause shown, the court may grant leave to take a subsequent deposition, and the parties, with the consent of any deponent who is not a party, may stipulate that a subsequent deposition be taken.” (Code Civ. Proc., § 2025.610, subd. (b).)

“A party seeking to compel discovery must . . . set forth specific facts showing good cause justifying the discovery sought.” (Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224.) “To establish good cause, a discovery proponent must identify a disputed fact that is consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove that fact.” (Ibid.) “In law and motion practice, factual evidence is supplied to the court by way of declarations.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)

Defendant contends that good cause exists to compel a second session of Plaintiff’s deposition because: (1) until recently Plaintiff’s only claimed injuries were to his neck and back and, on March 28, 2023, Plaintiff first identified that he is making a claim for urological injuries; and (2) on November 6, 2023, Plaintiff produced new medical records pertaining to a surgery he underwent on September 27, 2023, for the removal of screws and rods that were inserted during fusion surgery. (Motion, p. 5:14-6:1.)

Plaintiff contends that there is no good cause for a second deposition because Defendant has already obtained ample discovery on Plaintiff’s urological injuries and Defendant should not get a second deposition regarding Plaintiff’s lower back injury and treatment.

Defendant served written discovery requests on Plaintiff including Form Interrogatories, Set One. (Kaufman Decl., ¶ 2.) On or about June 15, 2021, Plaintiff served his responses to Form Interrogatories, Set One and in response to Form Interrogatory Number 6.2 pertaining to injuries, Plaintiff responded that he “sustained injuries to his neck and back which resulted in lumbar fusion.” (Id., ¶ 3 and Exhibit A.) Plaintiff also did not identify a urologist in his response to Form Interrogatory Number 6.4. (Id.)

Trial in this matter was originally set for September 22, 2022, and, in accordance with the initial trial date, the parties exchanged designations of expert witnesses. (Id., ¶ 5 and Exhibits B-C.) None of Plaintiff’s designated experts were urologists. (Id.)

On or about August 31, 2022, the trial date was continued to November 14, 2022. (Id., ¶ 6.) Plaintiff was deposed on October 21, 2022, and, while he identified testicular pain, he did not identify erectile dysfunction or ejaculatory dysfunction as injuries that resulted from the subject accident and/or the fusion surgery he underwent for injuries he allegedly sustained in the accident. (Id., ¶ 7 and Exhibit D.) On October 31, 2022, trial was again continued; this time to March 23, 2023. (Id., ¶ 8.) On November 1, 2022, Grant, Genovese & Baratta, LLP substituted in as new counsel for Defendant. (Id., ¶ 9.)

On March 9, 2023, which is when Plaintiff served his expert witness designation corresponding to the new trial date, Defendant was first made aware that Plaintiff was potentially making a claim for urological injuries. (Id., ¶ 13 and Exhibit E.) Plaintiff did not make a claim for urological injuries in written discovery or at Plaintiff’s deposition. (Id.) The deposition of Plaintiff’s urologist, S. Adam Ramin, M.D., occurred on April 11, 2023. (Id., ¶ 14.)

On March 28, 2023, Plaintiff produced medical records for the first time which indicated that Plaintiff was alleging substantial urological complaints including testicular pain, erectile dysfunction, and ejaculatory dysfunction. (Id., ¶ 16 and Exhibit G.) Defendant contends that Plaintiff sandbagged him by disclosing the substantial urological complaints on the eve of trial, after discovery had closed, and experts were designated. (Id.)

On April 6, 2023, the Court granted in part and denied in part Defendant’s ex parte application to continue trial, the FSC date, and all related dates and deadlines. (Id., ¶ 17.) The Court continued trial to January 25, 2024, but ordered that a noticed motion was required to reopen discovery. (Id.) On April 6, 2023, counsel’s office reserved the first available hearing date of December 19, 2023, for a motion to compel a second deposition session of Plaintiff. (Id., ¶ 18.) On November 6, 2023, the Court granted Defendant’s motion to reopen discovery for the limited purpose of hearing the instant motion to compel, entry of any associated orders, and for the deposition itself should the motion be granted. (Id., ¶ 19 and Exhibit H.)

In opposition to the Motion, Plaintiff presents evidence that during his October 21, 2022 deposition, Plaintiff’s urologist discussed Plaintiff’s urological conditions. (Teller Decl., Exhibit 2.) Plaintiff presents evidence that his urologist produced his medical records to Defendant. (Id., Exhibit 3.) Counsel declares that Plaintiff also presented medical records that were produced by his treating neurosurgeon. (Id., Exhibit 4.) Plaintiff also presents evidence that he testified at his October 21, 2022, deposition that a doctor recommended another surgery to take screws out of his spine. (Id., Exhibit 1 at p. 59:9-25.)

The Court finds that Plaintiff did not disclose the specific urological issues of erectile dysfunction and ejaculatory dysfunction at the first session of his deposition. (Teller Decl., Exhibit 1.) Plaintiff only disclosed such ailments in his March 28, 2023, responses to Defendant’s supplemental discovery requests. (Kaufman Decl., ¶ 16 and Exhibit G.)

However, the Court finds that Defendant has not made a showing of good cause to compel a second deposition of Plaintiff. Defendant has obtained the medical records of Plaintiff concerning his new urological ailments, and Defendant has deposed Plaintiff’s urologist. The declaration of counsel in support of the Motion fails to articulate how such information is insufficient to adequately prepare for trial and why a second deposition of Plaintiff is necessary to inquire into Plaintiff’s urological ailments. The medical records that Defendant has should be sufficient to prepare for trial. And, while Plaintiff did not specifically identify erectile disfunction as a problem in his first deposition, he made it clear that he had testicular issues. Defendant had an opportunity to explore that issue fully at the first deposition.

As to the necessity of a second deposition of Plaintiff to inquire as to the surgery he underwent on September 27, 2023, Defendant concedes that Plaintiff has provided medical records on such topic. (Motion, p. 5:26-6:1.) The declaration of counsel in support of the Motion, however, is void of any indication as to how such medical records are insufficient to advise Defendant of the full extent of Plaintiff’s medical treatment after the first deposition. The request would appear to open the door to second depositions in all personal injury cases involving ongoing treatment. The request to reopen this line of questioning creates some concern in the Court’s mind that Defendant is, as Plaintiff argues, seeking to obtain a second deposition simply because Defendant is not satisfied with the deposition that former counsel conducted. That certainly is not good cause. In expanding its request beyond the erectile disfunction issue, Defendant overplayed his hand.

In sum, Defendant does not make a showing of good cause. The declaration of Defendant’s counsel failed to set forth facts, as required by Calcor Space Facility, Inc. v. Superior Court, supra, 53 Cal.App.4th 216, 224, to show how a second deposition of Plaintiff will tend in reason to prove or disprove a disputed fact or lead to other evidence that will tend to prove or disprove a disputed fact. Accordingly, the Court DENIES the Motion.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Lee S. Arian

Judge of the Superior Court