Judge: Lisa R. Jaskol, Case: 20STCV17842, Date: 2024-12-06 Tentative Ruling
Case Number: 20STCV17842 Hearing Date: December 6, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
A. Previous proceedings
On May 11, 2020, Plaintiffs Sharon Luong (“Luong”) and Chris Lam (“Lam”) filed this action against Defendants Anna Monroy, Nicholas Monroy, and Does 1-100 for motor vehicle tort and loss of consortium.
On November 4, 2021, Defendants Anna Monroy and Nicholas Monroy ("Defendants") filed an answer.
On August 30, 2022, the Court granted Plaintiffs’ ex parte application to continue the trial and continued the trial from January 5, 2023 to June 30, 2023, with discovery and related dates to trail the new trial date.
On May 22, 2023, Plaintiffs filed another ex parte application to continue the trial, asserting that Plaintiffs’ counsel had lost contact with Luong and needed additional time to complete expert discovery. On May 24, 2023, the Court denied the ex parte application but continued the trial from June 30, 2023 to August 14, 2023. The Court stated that Plaintiffs would need to file a noticed motion if they wished to seek a longer continuance.
On June 14, 2023, Plaintiffs filed a motion to continue the trial for six months, stating that Luong was “unfit for trial due to mental health issues for which she is actively seeking medical care.” The motion also stated that Plaintiffs’ counsel had lost direct contact with Luong, Luong’s doctor had recommended surgery for Leung’s chronic pain, and Luong was not prepared to go proceed with the surgery due to her mental condition. On June 30, 2023, Plaintiffs filed an ex parte application to advance the hearing or to continue the trial.
On July 3, 2023, the Court continued the trial from August 14, 2023 to November 9, 2023, with discovery and related dates to trail the new trial date. The Court left the motion filed June 14, 2023 on calendar to be heard on August 7, 2023.
On August 7, 2023, Plaintiffs’ counsel informed the Court that he had established indirect communication with Luong but could not be ready for trial until February 2024. The Court granted the motion and continued the trial from November 9, 2023 to March 1, 2024, with discovery and related dates to trail the new trial date.
On February 6, 2024, Plaintiffs filed a motion to continue the trial and all related dates, to be heard on March 4, 2024, as well as an ex parte application to shorten time to hear the motion or to continue the trial. The Court continued the trial from March 1, 2024 to April 19, 2024, with discovery and related dates to trail the new trial date, and left the motion to continue the trial on calendar for March 4, 2024. Defendants opposed the motion.
On March 4, 2024, the Court continued the trial to August 26, 2024. The Court denied without prejudice Plaintiffs’ request to reopen discovery but ordered that the depositions of previously designated experts would be based on the new trial date.
On August 9, 2024, based on the parties’ stipulation, the Court continued the trial to November 19, 2024 and ordered that discovery dates would not be continued, with the exception of completing expert depositions.
On November 7, 2024, based on the parties’ stipulation, the Court continued the trial to January 29, 2025 and ordered: “All dates related to trial, discovery and expert discovery deadlines are closed. Pre-trial documents and pre-trial deadlines for filing motions in limine, shall be continued and set in accordance with the new trial date.”
B. This motion
PARTIES’ REQUESTS
Plaintiffs ask the Court to compel defense expert Luke Macyszyn to answer deposition questions and produce deposition exhibits. Plaintiffs also ask the Court to award sanctions.
Defendants
ask the Court to deny the motion.
LEGAL STANDARD
Code of Civil Procedure section 2025.480 provides:
“(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.
“(b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.
“(c) Notice of this motion shall be given to all parties and to the deponent either orally at the examination, or by subsequent service in writing. If the notice of the motion is given orally, the deposition officer shall direct the deponent to attend a session of the court at the time specified in the notice.
* * *
“(h) Not less than five days prior to the hearing on this motion, the moving party shall lodge with the court a certified copy of any parts of the stenographic transcript of the deposition that are relevant to the motion. If a deposition is recorded by audio or video technology, the moving party is required to lodge a certified copy of a transcript of any parts of the deposition that are relevant to the motion.
“(i) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.
“(j) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, 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., § 2025.480, subds. (a), (b), (c), (h), (i), (j).)
California
Rules of Court, rule 3.1345, provides that, with exceptions that do not
apply here, “any motion involving the content of a discovery request or the
responses to such a request must be accompanied by a separate statement. The motions that require a separate statement
include a motion: . . . (4) To compel answers at a deposition; (5) To compel .
. . the production of documents or tangible things at a deposition . . .” (Cal. Rules of Court, rule 3.1345(a)(4), (a)(5).)
DISCUSSION
On July 17, 2024, Plaintiffs noticed the deposition of Defendants’ expert Luke Macyszyn, M.D. (“Dr. Macyszyn”). On July 31, 2024, Plaintiffs deposed Dr. Macyszyn. Plaintiffs contend that Dr. Macyszyn refused to answer questions and failed to produce documents responsive to the deposition notice. Plaintiffs now move to compel Dr. Macyszyn to answer the questions and produce the documents.
Defendants argue the motion is untimely because Plaintiffs filed it more than “60 days after the completion of the record of the deposition” on August 13 or 14, 2024. (See Code Civ. Proc., § 2025.480, subd. (a).) Defendants also argue the motion is deficient because it does not include a separate statement. (See Cal. Rules of Court, rule 3.1345(a)(4), (a)(5).)
In their reply, Plaintiffs respond that Defendants waived these procedural arguments by also making substantive arguments. The Court finds that Defendants did not waive their procedural arguments by presenting alternative substantive arguments.
Plaintiffs also contend that “Defendants were not prejudiced by the minor delay in Plaintiffs’ filing of their Motion to Compel.” (Reply p. 4.) But Plaintiffs cite no authority requiring a showing of prejudice to invoke the statutory time limitation on filing a motion under Code of Civil Procedure section 2025.480.
The
Court denies Plaintiffs’ motion because it is untimely and lacks a separate
statement.
CONCLUSION
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file proof of service of this ruling with the Court within five days.