Judge: Lisa R. Jaskol, Case: 22STCV22277, Date: 2024-09-23 Tentative Ruling
Case Number: 22STCV22277 Hearing Date: September 23, 2024 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On July 11, 2022, Plaintiff Tiffani Tebrich (“Plaintiff”) filed this action against Defendants California PV Energy 3, LLC (“PV”), Rosendin Electric, Inc. (“Rosendin”), City of Long Beach (“City”), and Does 1-50 for negligence and governmental tort liability under Government Code sections 815.2, subdivision (a), 815.4, 815.6, 820, subdivision (a), 835 et seq., and 840.2.
On August 30, 2022, Rosendin filed an answer and a cross-complaint against Cross-Defendants Roes 1-100 for implied indemnity, express indemnity, contribution, declaratory relief, and duty to defend. On April 20, 2023, Rosendin amended its cross-complaint to include Cross-Defendant M Bar C Construction, Inc. as Roe 1 (“M Bar”). On July 3, 2023, M Bar filed an answer to the cross-complaint.
On September 15, 2022, PV filed an answer. On December 8, 2022, the City filed an answer.
On October 2, 2023, Plaintiff amended the complaint to include Defendant M Bar Construction, Inc. as Doe 1. On December 6, 2023, Plaintiff corrected the amendment to name M Bar C Construction, LLC as Doe 26. On December 8, 2023, Plaintiff corrected the amendment to name M Bar as Doe 26.
On December 15, 2023, M Bar filed an answer to the complaint and a cross-complaint against Cross-Defendants Roes 1-25 for indemnification, apportionment of fault, and declaratory relief.
On August 16, 2024, Rosendin filed a motion to compel the deposition of David C. Lee, M.D. and for sanctions. The motion was set for hearing on September 23, 2024. No opposition has been filed.
Trial is currently scheduled for April 17, 2025.
PARTY’S REQUESTS
Rosendin asks the Court to order David C. Lee, MD (“Dr. Lee”) to comply with a deposition subpoena and impose sanctions on Dr. Lee.
LEGAL STANDARD
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.
* * *
“(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
Rosendin asks the Court to compel Dr. Lee’s attendance at a deposition because Dr. Lee failed to appear at a properly noticed deposition on June 17, 2024. Dr. Lee “was the orthopedic surgeon who performed surgery on Plaintiff’s right ankle a few days following the Subject Incident.” (Motion p. 3.) According to Rosendin, Dr. Lee refused to appear because Rosendin declined to pay Dr. Lee for his preparation time (in addition to the time spent at the deposition).
Code of Civil Procedure section 2034.430, subdivision (b), provides:
“(b) A party desiring to depose an expert witness described in subdivision (a) shall pay the expert’s reasonable and customary hourly or daily fee for any time spent at the deposition from the time noticed in the deposition subpoena, or from the time of the arrival of the expert witness should that time be later than the time noticed in the deposition subpoena, until the time the expert witness is dismissed from the deposition, regardless of whether the expert is actually deposed by any party attending the deposition.”
(Code Civ. Proc., § 2034.430, subd. (b); see Code Civ. Proc., § 2034.430, subd. (a)(2).)
The statute, on its face, does not entitle an expert witness to compensation for time spent preparing for a deposition. Dr. Lee has not filed an opposition to Rosendin’s motion explaining why he believes Rosendin should compensate him for this time.
The
Court grants the motion and orders Dr. Lee to appear at a deposition by October
22, 2024.
Rosendin asks the Court to
impose monetary sanctions against Dr. Lee.
Code of Civil Procedure section 2025.480,
subdivision (j), authorizes the Court to impose monetary sanctions “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.”
Dr. Lee did not make or oppose a motion to compel attendance at a
deposition. Therefore, Code of Civil
Procedure section 2025.480, subdivision (j), does not authorize a sanctions
award.
Other statutes addressing misuse of the discovery process do not, by themselves, authorize a sanctions award for Rosendin’s motion. In City of Los Angeles v. Pricewaterhousecoopers, LLP (Aug. 23, 2024) __ Cal.5th __ [2024 WL 3894042, 2024 DJDAR 8056, slip opn. pp. 1-42] (PwC), the Supreme Court held: “It is already well-established that a court may not rely on [Code of Civil Procedure] section 2023.030 to override the limitations prescribed by any other applicable sanctions provision in the Act. A court may invoke its independent authority to impose sanctions under sections 2023.010 and 2023.030 only when confronted with an unusual form of discovery abuse, or a pattern of abuse, not already addressed by a relevant sanctions provision. And where it invokes that authority, it is constrained by the long-settled rules generally governing the imposition of discovery sanctions under the Act.” (PwC, supra, __ Cal.5th __ [2024 WL 3894042 at *18, 2024 DJDAR at p. 8066, slip opn. at p. 40].)
Code of Civil Procedure section 2025.480, subdivision (j), limits the Court’s authority to impose sanctions when (as here) a non-moving third-party deponent does not oppose a successful motion to compel attendance at a deposition. Because the statute addresses the issue, the Court may not invoke its independent authority to impose sanctions under Code of Civil Procedure sections 2023.010 and 2023.030. (See PwC, supra, __ Cal.5th __ [2024 WL 3894042 at *18, 2024 DJDAR at p. 8066, slip opn. at p. 40].)
The Court denies Rosendin’s sanctions request.
CONCLUSION
The Court GRANTS Rosendin Electric, Inc.’s motion to compel the deposition of David C. Lee, M.D., and for sanctions. The Court orders David C. Lee, M.D. to appear for a deposition by October 22, 2024. Rosendin Electric, Inc. is to make all necessary arrangements to take David C. Lee, M.D.’s deposition by this deadline.
The Court DENIES Rosendin Electric, Inc.’s request for sanctions.
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.