Judge Lee S. Arian, Case Number: 22STCV15463, Date: 2023-11-15 Tentative Ruling

MOVING PARTY: Defendants Ralph Raulli and Fullerton Island Village Apartments, LLC (“Fullerton Island”) (collectively “Defendants”)

This action arises from an alleged fall that Plaintiff Lorie Benson (“Plaintiff”) sustained on April 28, 2021, while walking on a defective stairway located at 125 N. Acacia Ave., Fullerton, CA 92831 (the “Subject Premises”).

On May 10, 2022, Plaintiff filed a complaint against Defendants Fullerton Island Village Apartments, LLC (“Fullerton Island”), Ralph Raulli, and DOES 1 through 50 (collectively “Defendants”) alleging causes of action for: (1) negligence and (2) premises liability.

On September 25, 2023, Defendants filed and served two motions. Defendants filed a motion for a protective order precluding Plaintiff from taking a second deposition of Defendant Fullerton Island’s Person Most Qualified (the “PMQ”) and for monetary sanctions against Plaintiff and Plaintiff’s attorney of record, Daniel B. Miller and Wilshire Law Firm, in the amount of $662.28 (the “Preclusion Motion”).[1] Defendants also filed a motion for a protective order postponing the videotaped depositions noticed by Plaintiff of her treating doctors, Amer Khalil, M.D., Steven S. Shin, M.D., and Jonathan Eskenazi, M.D., until a date after Defendants have taken discovery depositions of those doctors (the “Postponement Motion”)[2] (collectively, the “Motions”).

On September 28, 2023, the Court granted Defendants’ ex parte applications to stay the deposition of Fullerton Island’s PMQ and stay the taking of Plaintiff’s videotaped depositions of Amer Khalil, M.D., Steven S. Shin, M.D., and Jonathan Eskenazi, M.D. until after the Motions are heard.

On January 17, 2024, Plaintiff filed oppositions to the Motions and, on January 22, 2024, Defendants filed reply briefs.

The Court will address both motions in this one ruling. The Court will address the Preclusion Motion first and then the Court will address the Postponement Motion. The Court finds that the meet and confer requirement has been met as to both motions. (Code Civ. Proc., § 2025.420.)

Defendants move for an order precluding Plaintiff from taking a second deposition of the Fullerton Island’s PMQ, which was noticed by Plaintiff on August 25, 2023. The Preclusion Motion is made on the grounds that the Topics of Examination listed in Plaintiff’s deposition notice consisted of topics that were either covered or could have been covered when Plaintiff previously deposed the Fullerton Island PMQ on November 16, 2022. (Motion, 2: 9-15.)

In opposition to the Preclusion Motion, Plaintiff argues that the motion is moot because Plaintiff withdrew the second deposition of the Fullerton Island PMQ on September 27, 2023. (DeSantis Decl., ¶ 2; Exhibit 1.) Defendants assert that the motion is not moot because Plaintiff has only temporarily withdrawn the second notice of deposition of the Fullerton Island PMQ. (Reply, 2:15-19.)

“The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b).) A protective order may include a direction that a “deposition not be taken at all.” (Code Civ. Proc., § 2025.420, subd. (b)(1).) A court must restrict the extent or use of a discovery method if “[t]he discovery sought is unreasonably cumulative or duplicative.” (Code Civ. Proc., § 2019.030, subd. (a)(1).)

The Court notes that Plaintiff’s counsel has indicated that Plaintiff is “withdrawing the noticed PMQ deposition for now, making defendant’s ex parte and motion on the subject moot.” (DeSantis Decl., ¶ 2; Exhibit 1.)

The Court finds that the Preclusion Motion is based on the second deposition notice pertaining to Fullerton Island’s PMQ. However, such deposition notice has been withdrawn and the basis for the Preclusion Motion, which is the August 25, 2023 notice of deposition for Fullerton Island’s PMQ, is now moot.

Defendants assert that a protective order is still needed to prohibit Plaintiff from re-noticing the deposition of Fullerton Island’s PMQ. In essence, Defendants seek a ruling on a possible course of action that Plaintiff may take.

At this time, the Court declines the invitation to rule on possibilities. Suffice it to say, with each court in the PI Hub saddled with a docket of about 4,000 cases, the Court does not have the time to provide what amounts to advisory rulings. If Plaintiff notices another Fullerton Island PMQ deposition, and the parties cannot agree on the propriety of that noticed deposition, the Court will resolve that dispute when it arises.

While the Court is not in the business of providing advisory opinions, it notes that even if the Preclusion Motion were not moot, the Court could not issue a protective order due to Defendants’ failure to show good cause. “[T]he burden is on the party seeking the protective order to show good cause for whatever order is sought.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) Good cause is not “enshrined in legal formalism; it calls for a factual exposition of a reasonable ground for the sought order.” (Tanguilig v. Valdez (2019) 36 Cal.App.5th 514, 528.) “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.) Counsel fails to articulate in her declarations why a protective order is needed.

“The court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2025.420, subd. (h).) A trial court has discretion to impose monetary sanctions against a party persisting, “over objection and without substantial justification, in an attempt to obtain information outside the scope of permissible discovery.” (Pratt v. Union Railroad Co. (2008) 168 Cal.App.4th 165, 183.)

The Court declines to impose monetary sanctions against Plaintiff and Plaintiff’s attorney of record. While the Court recognizes that Defendants filed the Preclusion Motion prior to withdrawal of the second deposition notice for Fullerton Island’s PMQ, the Preclusion Motion is now moot. Moreover, even if the Preclusion Motion was not moot pursuant to the withdrawal of the second deposition notice, Defendants have not made a showing of good cause to justify a protective order. Moreover, the Court fails to see how Plaintiff persisted over objection when the second deposition notice was withdrawn shortly after the instant motion was filed.

Thus, the Court DENIES the Preclusion Motion in its entirety WITHOUT PREJUDICE. The Court also DENIES Defendants’ request for monetary sanctions against Plaintiff and her counsel of record. The Court finds that imposition of monetary sanctions would be unjust.

Defendants move for a protective order postponing the videotaped depositions noticed by Plaintiff of her treating doctors, Amer Khalil, M.D., Steven S. Shin, M.D., and Jonathan Eskenazi, M.D., until a date after Defendants have taken discovery depositions of those doctors. (Postpone Deposition Motion, 1:27-2:3.) The motion is made on the grounds that Defendants need an opportunity to take discovery of such doctors before Plaintiff’s videotaped depositions of those doctors in order to prepare for cross-examination of those doctors at trial. Defendants seek a protective order allowing them to take discovery depositions of Plaintiff’s treating doctors prior to Plaintiff taking videotaped depositions of her treating doctors for use at trial.

The Court references the legal standards set forth above pursuant to the Preclusion Motion and applies such legal standards herein. The Court may issue a protective order with a direction “[t]hat a video recording of the deposition testimony of a treating or consulting physician or any expert witness, intended for possible use at trial . . . be postponed until the moving party has had an adequate opportunity to prepare, by discovery deposition of the deponent, or other means, for cross-examination.” (Code Civ. Proc., § 2025.420, subd. (b)(3).) “[O]n motion and for good cause shown, the court may 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, subd. (b).) The right of a party to engage in expert witness discovery “stems from the necessity of preparing to cope with that expert when he does take the witness stand at trial.” (Kennemur v. State of California (1982) 133 Cal.App.3d 907, 916.) “If anything, the need for pretrial discovery as an aid to the preparation of cross-examination and rebuttal is greater with respect to the expert witness than it is in the case of an ordinary fact witness.” (Id. at p. 916-17.)

Initially, in opposition to the Postponement Motion, Plaintiff contends that the motion is no longer necessary because the depositions of her treating doctors have already been postponed because the depositions have been taken off-calendar. (Opposition, 2:4-5.) Plaintiff, however, presents no evidence supporting such fact and, on reply, Defendants contend that Plaintiff has not withdrawn the noticed videotaped depositions of her treating providers. (Supp. Decl. of Capra-Cunningham, ¶¶ 4, 7-8; Exhibits M and N.) Plaintiff provides no evidence in support of the opposition.

Counsel for Defendants, Marisa M. Capra-Cunningham, declares that Plaintiff identified Amer Khalil, M.D., Steven S. Shin, M.D., and Jonathan Eskenazi, M.D., as healthcare providers from which she received treatment for her claimed injuries. (Capra-Cunningham Decl., ¶ 3; Exhibit A.) On August 25, 2023, Plaintiff served notice of taking the depositions of Dr. Khalil, Dr. Shin, and Dr. Eskenazi, all of which were set for September 29, 2023, and each of the deposition notices stated that Plaintiff reserved the right to videotape the depositions for possible use at trial. (Id., ¶ 6; Exhibits D, E, F.) Plaintiff served deposition subpoenas for personal appearance on August 25, 2023, which ordered each of the respective doctors to appear and testify at deposition on September 29, 2023, and each deposition subpoena stated that the deposition would be recorded by videotape for possible use at trial. (Id., ¶ 7; Exhibits G, H, I.)

Counsel declares that to properly prepare for cross-examination of such providers, she needs an opportunity to first take discovery depositions of such providers. (Id., ¶ 10.) Counsel further states that after discovery depositions of such providers are completed, she needs time to review the testimony, have such testimony reviewed by Defendants’ medical consultants, and discuss the doctors’ testimony with Defendants’ medical consultants. (Id., ¶ 10.) Thus, counsel states that in order “to provide an adequate opportunity for [her] to prepare for cross-examination of Dr. Khalil, Dr. Shin, and Dr. Eskenazi, [P]laintiff’s videotaped depositions of these doctors should be postponed until a reasonable time after discovery depositions of these doctors have been taken.” (Id.)

Initially, the Court finds that Plaintiff’s citation to Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389 is inapposite as such case did not involve the issuance of a protective order. Also, Plaintiff only presents argument—and no factual evidence—to support the contention that Defendants have not acted diligently in obtaining the discovery depositions of Plaintiff’s treating providers.

The Court finds that Defendants have shown good cause for a protective order as to the Postponement Motion. Given that Plaintiff is seeking to utilize the videotaped depositions of her treating doctors at trial, the Court finds it appropriate that Defendants be able to prepare for cross-examination beforehand by way of discovery depositions. Defendants’ counsel attests to the fact that discovery has yet to be completed. (Capra-Cunningham Decl., ¶ 8; Exhibit J.) Plaintiff has indicated that she seeks to use such videotaped deposition testimony at trial. The Court finds that Defendants should have the opportunity “to prepare, by discovery deposition of the deponent, or other means, for cross-examination.” (Code Civ. Proc., § 2025.420, subd. (b)(3).)

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

[1] This motion has a CRS reservation identification number ending in 6773.

[2] This motion has a CRS reservation identification number ending in 2607.