Judge: Lisa R. Jaskol, Case: 20STCV28198, Date: 2024-11-12 Tentative Ruling
Case Number: 20STCV28198 Hearing Date: November 12, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On July 27, 2020, Plaintiff Chun Ho Tang (“Plaintiff”) filed this action against Defendants Mario Salazar (“Salazar”), Harbor Dispatch Transport, Inc. (“Harbor Dispatch”), and Does 1-50 for negligence.
On November 4, 2021, Salazar and Harbor Dispatch (“Defendants”) filed an answer.
On September 30, 2024, Defendants filed an amended motion to compel Plaintiff’s experts, Lester Zackler, M.D., and Brendan Bourdage, Ph.D., to produce documents and attend depositions. Defendants also asked the Court to award monetary sanctions. The motion was set for hearing on November 12, 2024. On October 29, 2024, Plaintiff filed an opposition, sanctions request, and request for judicial notice. On November 4, 2024, Defendants filed a reply.
Trial is currently set for December 16, 2024.
PARTIES’ REQUESTS
Defendants ask the Court to order Plaintiff’s experts, Lester Zackler, M.D., and Brendan Bourdage, Ph.D., to produce documents and attend depositions. Defendants also ask the Court to award sanctions.
Plaintiff asks the Court to deny the motion, impose sanctions on Defendants, and grant Plaintiff’s judicial notice request.
PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE
Denied. (See Bolanos v. Superior Court (2008)
169 Cal.App.4th 744, 761 [denying request to take judicial notice of trial
court order in unrelated case because, “To the extent [the plaintiff] offers it
as legal authority supporting her position, the request is improper. Even
assuming for the sake of argument that the case in question involves the same
issue as the case before us . . . , a written trial court ruling has no
precedential value. [Citation]”]; see Aixtron,
Inc. v. Veeco Instruments Inc. (2020) 52 Cal.App.5th 360, 399.)
LEGAL STANDARD
A. Expert depositions
Code of Civil Procedure section 2034.410 provides:
“On receipt of an expert witness list from a party, any other party may take the deposition of any person on the list. The procedures for taking oral and written depositions set forth in Chapters 9 (commencing with Section 2025.010), 10 (commencing with Section 2026.010), and 11 (commencing with Section 2028.010) apply to a deposition of a listed trial expert witness except as provided in this article.”
(Code Civ. Proc., § 2034.410.)
Code of Civil Procedure section 2034.415 provides:
“An expert described in subdivision (b) of Section 2034.210 whose deposition is noticed pursuant to Section 2025.220 shall, no later than three business days before his or her deposition, produce any materials or category of materials, including any electronically stored information, called for by the deposition notice.”
(Code Civ. Proc., § 2034.415.)
Code of Civil Procedure section 2034.460, subdivision (a), provides:
“The service of a proper deposition notice accompanied by the tender of the expert witness fee described in Section 2034.430 is effective to require the party employing or retaining the expert to produce the expert for the deposition.”
(Code Civ. Proc., § 2034.460, subd. (a).)
B. Deponent’s failure to answer questions or produce
documents
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).)
DISCUSSION
A. Defendants’ retention of new counsel
Plaintiff argues that the Court should deny Defendants' motion because Defendants’ former counsel -- who represented Defendants when Defendants filed the motion -- lack “standing” to bring the motion. The argument is frivolous. Defendants have standing to bring the motion and they are entitled to retain new counsel.
B. Lester Zackler, M.D.
On August 14, 2024, Defendants noticed the deposition of Lester Zackler, M.D., Plaintiff’s expert psychiatrist. The deposition was set for September 10, 2024. The deposition notice included a document production request asking for, among other things:
· “YOUR complete file, or files, in this case and their
entire contents.
· “All DOCUMENTS YOU prepared, drafted, wrote, composed,
or signed in connection with this case. These DOCUMENTS must be produced in
native format (e.g., Excel, PowerPoint, Word, etc.).
· “All DOCUMENTS YOU read, considered, referred to,
relied upon or reviewed to complete YOUR work in connection with this case.
· “All DOCUMENTS concerning YOUR preparation to testify
and YOUR proposed testimony in this case.
· “All DOCUMENTS and items provided by YOU for examination, consideration and review in this case.”
According to Defendants, the parties met and conferred and agreed that Dr. Zackler would produce his “psychological test data sheets and reports” directly to Defendants’ expert. In exchange, Defendants’ expert, Dr. Boone, would provide her “psychological raw data and testing results” directly to Dr. Zackler. However, Defendants argue, Dr. Zackler has refused to produce his materials. Defendants ask the Court to compel Dr. Zackler to produce these materials and to appear for his deposition.
Plaintiff
disputes Defendants’ description of the parties’ agreement. According to Plaintiff, the parties agreed
that Dr. Boone (Defendants’ expert) would produce “psychological raw data and
testing results” not only to Dr. Zackler but also to Plaintiff’s counsel. In return, Dr. Zackler would produce his raw
data not only to Dr. Boone but also to Defendant’s counsel.
The
Court has reviewed the email exchanges attached to Defendants’ motion. On September 6, 2024, Defendants’ counsel
emailed Plaintiff’s counsel stating, “Dr. Boone [Defendants' expert] will agree
to produce her psychological testing records to Dr. Zackler [Plaintiff’s
expert] after she receive[s] his test records. Please have Dr. Zackler produce
his test records today.” In response, Plaintiff’s
counsel asked that Dr. Boone “share her raw data and testing results with me in
addition to our expert.” Defendants’ counsel
responded by asking if Dr. Zackler would be willing to share his testing data
with Defendants’ counsel in addition to Dr. Boone. Plaintiff’s counsel answered, “If Boone does,
then I wouldn’t see why not. As you know, these experts hold this data as
privileged absent an agreement by the parties. It sounds like we’re pretty
close to that agreement. If you can confirm in writing that Boone will share
with me and our experts, we should be good to go.” Defendants’ counsel responded that he
required confirmation in writing that Dr. Zackler would produce his testing
records to Defendants’ counsel and he would then get confirmation from Dr.
Boone. Plaintiff’s counsel responded: “Steven
I don’t understand what you don’t understand. So to avoid any games on your
experts part, we will say it again: Zackler will produce his data if you agree
in writing that Boone will produce hers. Otherwise, it looks like we’ll both
have motions to file.”
On September 9, 2024, Defendants’ counsel emailed Plaintiff’s counsel stating, “To circle back on our conversation from yesterday - please advise whether it is your position that Dr. Zackler will only produce his test data to Dr. Boone if Dr. Boone produces her psychological raw testing data and testing results to you, [another attorney representing Plaintiff], and Dr. Zackler.”
Plaintiff’s counsel answered, “Yes, but I'm fine with the doctors exchanging between themselves if it's a problem for them to exchange with the attorneys as well.”
Defendants’ counsel responded, “Yes, it is a problem to include the attorneys. As such, please have Dr. Zackler produce his materials directly to Dr. Boone, and she will agree to produce her psychological raw testing data and testing results to Dr. Zackler directly. Please arrange Dr. Zackler’s delivery of his materials to Dr. Boone today.”
The Court finds that (contrary to Plaintiff’s contention) the parties did not agree that Dr. Boone would produce psychological raw data and testing results to Plaintiff’s counsel in addition to Dr. Zackler. Therefore, Dr. Boone’s purported failure to produce her raw data and testing results to Plaintiff’s counsel does not excuse Plaintiff’s failure to comply with Defendants’ deposition subpoena for Dr. Zackler.
Plaintiff also argues that the Court should order Defendants to produce Dr. Boone’s raw data simultaneously with Dr. Zackler’s production of documents. But Plaintiff has not moved to compel Dr. Boone to produce documents. Instead, the Court has before it only Defendants’ motion to compel Dr. Zackler’s compliance with a deposition notice and request for production of documents. Defendants’ purported failure to agree to produce Dr. Boone’s data simultaneously does not excuse Plaintiff’s failure to comply with Defendants’ deposition notice.
Finally, citing Randy's Trucking, Inc. v. Superior Court (2023) 91 Cal.App.5th 818, 837 (Randy’s Trucking), Plaintiff argues the Court should order Defendants to produce their raw testing data to Plaintiff’s counsel. (Opposition pp. 4-5.) But Plaintiffs have not filed a motion to compel or a motion for leave to conduct a physical or mental examination. Plaintiff has shown no agreement by Defendants to forego their right to compel Plaintiff’s compliance with Defendants’ deposition notice for Dr. Zackler.
The Court grants Defendants’ motion and orders Plaintiff to produce documents responsive to the Fourth Amended Notice of Taking Videotaped Deposition of Plaintiff’s Retained Expert, Lester Zackler, M.D., by November 26, 2024 and to produce Dr. Zackler for deposition by December 10, 2024.
C. Brendan Bourdage, Ph.D.
On August 22, 2024, Defendants noticed the deposition of Brendan Bourdage, Ph.D., Plaintiff’s accident investigation and reconstruction expert. The deposition was set for September 18, 2024. The deposition notice included a document production request asking for, among other things:
· “YOUR complete file, or files, in this case and their
entire contents.
· “All DOCUMENTS YOU prepared, drafted, wrote, composed,
or signed in connection with this case. These DOCUMENTS must be produced in
native format (e.g., Excel, PowerPoint, Word, etc.).
· “All DOCUMENTS YOU read, considered, referred to,
relied upon or reviewed to complete YOUR work in connection with this case.
· “All DOCUMENTS concerning YOUR preparation to testify
and YOUR proposed testimony in this case.
· “All DOCUMENTS and items provided by YOU for
examination, consideration and review in this case.”
In opposition, Plaintiff argues that he has replaced Dr. Bourdage as an expert witness, making Defendants’ motion concerning Dr. Bourdage moot.
Defendants disagree, noting that Plaintiff has refused to “officially de-designate” Dr. Bourdage. Defendants ask the Court to grant their motion with respect to Dr. Bourdage conditioned on Plaintiff de-designating Dr. Bourdage as an expert.
The Court denies Defendants’ motion as moot. On its own motion, the Court excludes Dr. Bourdage as a retained expert for Plaintiff in this case.
D. Sanctions
Defendants
request $1,064.50 in sanctions based on 4.1 hours to draft the motion at a rate
of $245.00 per hour and one $60.00 filing fee.
The Court imposes $795.00 in sanctions on Plaintiff based on three hours
of attorney time and one filing fee.
CONCLUSION
The Court GRANTS the motion filed by Defendants Mario Salazar and Harbor Dispatch Transport, Inc. to compel Plaintiff Chun Ho Tang to produce documents responsive to the Fourth Amended Notice of Taking Videotaped Deposition of Plaintiff’s Retained Expert, Lester Zackler, M.D. The Court orders Plaintiff to produce documents responsive to the Fourth Amended Notice of Taking Videotaped Deposition of Plaintiff’s Retained Expert, Lester Zackler, M.D., by November 26, 2024 and to produce Dr. Zackler for deposition by December 10, 2024.
The Court grants the request for sanctions of Defendants Mario Salazar and Harbor Dispatch Transport, Inc. and orders Plaintiff Chun Ho Tang and Plaintiff’s counsel to pay Defendants Mario Salazar and Harbor Dispatch Transport, Inc. $795.00 by December 10, 2024.
The Court DENIES the motion filed by Defendants Mario Salazar and Harbor Dispatch Transport, Inc. to compel Plaintiff Chun Ho Tang to produce documents responsive to the Fourth Amended Notice of Taking Videotaped Deposition of Plaintiff’s Retained Expert, Brendan P. Bourdage, Ph.D.
On its own motion, the Court excludes Brendan P. Bourdage, Ph.D., as a retained expert for Plaintiff in this case.
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.