Judge: Lisa R. Jaskol, Case: 21STCV42870, Date: 2024-02-07 Tentative Ruling

Case Number: 21STCV42870    Hearing Date: February 7, 2024    Dept: 28

Having considered the moving, opposition, and reply papers, the Court rules as follows. 

BACKGROUND 

On November 22, 2021, Plaintiff Estivali Salamanca Villa (“Plaintiff”) filed this action against Defendants Taylor Benjamin Stein (“Taylor Stein”), Ronald Stein (“Ronald Stein”), and Does 1-100 for motor vehicle tort, general negligence, and negligence per se. 

On March 16, 2022, Defendants Taylor Stein and Ronald Stein ("Defendants") filed an answer. 

On October 24, 2023, Plaintiff filed a motion to compel the deposition of Defendants’ expert to be heard on February 7, 2024.  On January 25, 2024, Defendants filed an opposition.  On January 31, 2024, Plaintiff filed a reply. 

On October 26, 2023, in response to Plaintiff’s ex parte application, the Court continued the trial from October 26, 2023 to April 12, 2024 and ordered that discovery would remain closed with the exception of the motion to compel the deposition of Defendants’ expert scheduled for February 7, 2024. 

Trial is currently scheduled for April 12, 2024. 

PARTIES’ REQUESTS 

Plaintiff asks the Court to order Arya N. Shamie, M.D. (“Dr. Shamie”) to comply with a deposition subpoena.  Plaintiff also asks the Court to impose sanctions on Defendants. 

Defendants ask the Court to deny the motion and to impose sanctions on Plaintiff. 

LEGAL STANDARD 

A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition subpoena for production of business records. (Code Civ. Proc., § 2020.010.) A deposition subpoena may command the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things. (Code Civ. Proc., § 2020.020.) The Court may order a third party to comply with a deposition subpoena upon any terms or condition that the court declares. (Code Civ. Proc., § 1987.1.) 

Code of Civil Procedure section 2025.480 provides in part: 

“(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 3.1346, states: 

“A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.” 

(Cal. Rules of Court, rule 3.1346.) 

DISCUSSION 

A.   Chronology^[1]

Plaintiff noticed Dr. Shamie’s deposition for August 11, 2023. Dr. Shamie appeared for the deposition, answered several questions, but then left to perform an emergency surgery.  After the videographer announced that Dr. Shamie’s testimony was concluding for the day, Defendants’ counsel stated: “We'll reach out to Dr. Shamie to get this schedule -- rescheduled as soon as possible.” 

          On August 16, 2023, Defendants’ counsel emailed Plaintiff’s counsel stating, “Dr. Shamie is available on August 25th at 4:00 p.m. for the continuation of his deposition, please let us know if that date and time works for your office.”  On August 17, 2023, Defendants’ counsel sent Plaintiff’s counsel a follow-up email.  Plaintiff’s counsel did not respond to these emails. 

          On August 24, 2023, Defendants’ counsel emailed Plaintiff’s counsel stating, “We didn’t hear back from your office to confirm if you wanted to take Dr. Shamie’s deposition tomorrow, please be advise[d] he is also available September 1st at 4:00 p.m. Please let us know if this date and time works.” 

          On August 25, 2023, Plaintiff’s counsel emailed Defendants’ counsel asking, “Does Dr. Shamie have any additional opinions he intends to provide other than those in his reports? If we can get a confirmation, we may be able to waive the completion of the deposition, please let me know.”  Defendants’ counsel did not respond.  (See Martin Dec. ¶ 5 [“There was no further communication regarding rescheduling Dr Shamie’s deposition until October 25, 2023”].) 

          On October 13, 2023, Plaintiff’s counsel emailed Defendant’s counsel stating, “We will . . . be finalizing our [motions in limine] to exclude Dr. Shamie given the status and no response for additional dates after he left the deposition. If you want to send over a declaration saying he has provided all of his opinion[s] and the basis for all of his opinions, we can probably move forward, but we need to update our Kennemur motion for him.” 

Defendants’ counsel responded, “I do not recall getting an email [requesting] additional dates for Dr Shamie, and [the] parties agreed at [the] last [final status conference] that discovery is closed except for . . . taking the deposition of your expert.” 

Plaintiff’s counsel replied, “Your expert left claiming an emergency and then offered a few more minutes. He also offered to come back. He can either be excluded or we can cure this. The games are not acceptable.” 

On October 25, 2023, Plaintiff’s counsel asked if Defendant would permit the completion of Dr Shamie’s deposition.  Defendants’ counsel refused, saying the deadline had passed.  (Martin Dec. ¶ 8.) 

B.   Analysis 

As the chronology shows, Plaintiff is incorrect in arguing that Defendants never provided dates for Dr. Shamie’s continued deposition.  On August 16, 17, and 24, 2024, Defendants' counsel offered dates but Plaintiff's counsel did not respond to the offers. 

On the other hand, Plaintiff’s counsel offered to waive completion of Dr. Shamie’s deposition if Defendants’ counsel confirmed that Dr. Shamie had no opinions aside from those in his reports.  Defendants’ counsel did not respond to this offer. 

When Dr. Shamie left the deposition on August 11, 2023, the parties intended to schedule a continuation of the deposition.  The parties share responsibility for the failure either to schedule a continued deposition or to determine that a continued deposition was unnecessary.

The Court does not conclude, however, that Plaintiff has forfeited his right to complete Dr. Shamie's deposition.  The Court has continued the trial to April 12, 2024, giving Plaintiff time to complete the deposition if Plaintiff complies with the procedural requirements.

The proof of service on Plaintiff’s motion to compel does not show that Plaintiff personally served a copy of the motion on Dr. Shamie and Plaintiff has not shown that Dr. Shamie agreed to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.  (See Cal. Rules of Court, rule 3.1346.)  The Court therefore denies without prejudice Plaintiff's motion to compel Dr. Shamie to complete his deposition. 

The Court construes Plaintiff’s motion to compel to include a motion to reopen expert discovery for the sole purpose of completing Dr. Shamie’s deposition.  The Court grants the motion to reopen expert discovery for the sole purpose of completing Dr. Shamie’s deposition.  Expert discovery for this purpose will be based on the April 12, 2024 trial date. 

The Court denies Plaintiff’s and Defendants’ requests for sanctions because imposition of sanctions would be unjust. 

CONCLUSION 

The Court DENIES without prejudice the motion of Defendants Taylor Benjamin Stein and Ronald Stein to compel Arya N. Shamie, M.D., to complete his deposition. 

The Court GRANTS Plaintiff Estivali Salamanca Villa’s motion to reopen expert discovery for the sole purpose of completing Arya N. Shamie, M.D.’s deposition.  Expert discovery for this purpose will be based on the April 12, 2024 trial date. 

The Court DENIES the requests for sanctions of Plaintiff Estivali Salamanca Villa, Defendant Taylor Benjamin Stein, and Defendant Ronald Stein. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.