Judge: Loren G. Freestone, Case: 37-2021-00050602-CU-PO-CTL, Date: 2024-04-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 25, 2024

04/26/2024  10:30:00 AM  C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2021-00050602-CU-PO-CTL PERSAILS VS RESTAURANT DEPOT LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Plaintiff Lydia Persails's motion to quash deposition subpoenas is DENIED.

The cutoff for non-expert discovery is 30 days before the initial trial date. (Code Civ. Proc., § 2024.020, subd. (a).) The cutoff for 'discovery proceedings pertaining to a witness identified under Chapter 18 (commencing with Section 2034.010)' is 15 days before the initial trial date. (Id. at § 2024.030.) Chapter 18 addresses both retained and non-retained experts. (See Code Civ. Proc., § 2034.210, subds. (a)–(b); see also id. at §2034.410.) A deposition is timely if it begins before the cutoff. (Id. at § 2024.010.) A trial continuance generally does not change the discovery cutoff dates. (Code Civ. Proc., § 2024.020, subd. (b).) However, when trial is continued, parties may stipulate that discovery cutoff dates will be based off the new trial date. (Id. at § 2024.060.) Here, in December 2023, the parties stipulated to a trial continuance. (ROA #217.) The stipulation stated that all 'pretrial related deadlines for discover [and] expert discovery' were 'continued and reset in accordance with the new trial date.' The order granting the stipulation set the non-expert discovery cutoff for March 29, 2024. The expert cutoff date was set by law for April 11, 2024.

There are seven deposition subpoenas at issue. Each was initially noticed as follows: Sanjay Ghosh MD – March 6, 2024 Peter Minkoff MD – March 8, 2024 Brad Cohen MD – March 12, 2024 Payam Moazzaz MD – March 14, 2024 Scott Tanaka MD – March 15, 2024 Thomas Knutson MD – March 18, 2024 David Haffie DO – March 29, 2024 With the exception of Dr. Knutson, Persails designated all of the deponents as non-retained experts that she may call at trial. As initially noticed, each of the depositions was noticed to begin before both the applicable non-expert and expert discovery cutoffs.

On March 6, 8, and 13, 2024, Persails objected to the notices of deposition for Dr. Tanaka, Dr. Cohen, Calendar No.: Event ID:  TENTATIVE RULINGS

3109460  44 CASE NUMBER: CASE TITLE:  PERSAILS VS RESTAURANT DEPOT LLC [IMAGED]  37-2021-00050602-CU-PO-CTL and Dr. Knutson, respectively. Persails objected 'on the grounds that Defendants unilaterally noticed the deposition for a date Plaintiff's counsel is unavailable.' Persails requested that 'Defendants' counsel coordinate a date that is mutually convenient to the parties before re-setting [each] deposition.' In response to the deposition subpoenas, Dr. Minkoff, Dr. Ghosh, Dr. Moazzaz, and Dr. Haffie also advised Defendants that they were not available on the noticed deposition dates and requested the depositions be rescheduled to accommodate their availability.

Defendants therefore re-noticed each of the seven depositions as follows: Sanjay Ghosh MD – April 8, 2024 Scott Tanaka MD – April 10, 2024 Peter Minkoff MD – April 11, 2024 Payam Moazzaz MD – April 16, 2024 Brad Cohen MD – April 16, 2024 David Haffie DO – April 18, 2024 Thomas Knutson MD – April 25, 2024 It is these new dates that form the basis of the motion. Persails argues that each is past the non-expert discovery cutoff. Trial was continued to May 31, 2024 to resolve this dispute.

The motion is denied as to Dr. Ghosh, Dr. Tanaka, and Dr. Minkoff. As set forth above, the expert discovery cutoff applies to non-retained experts. (Code Civ. Proc., §§ 2024.030, 2034.210, subds.

(a)–(b), 2034.410.) Each was noticed to commence on or before that cutoff, and therefore those depositions are timely.

The motion is denied as to Dr. Cohen and Dr. Knutson. A party's actions can estop them from relying on discovery cutoff dates. (See Sears, Roebuck & Co. v. National Union Fire Ins. Co. of Pittsburgh (2005) 131 Cal.App.4th 1342, 1351–1352.) Persails objected to these timely noticed depositions based on her counsel's availability and requested that they be re-noticed for a mutually convenient date. She cannot now cry foul that the mutually convenient dates fall past the cutoff.

The motion is denied as to Dr. Moazzaz and Dr. Haffie. Parties have an ethical obligation to accommodate the schedules of non-parties and to avoid unnecessary discovery disputes. (See Cal. Atty. Guidelines of Civility & Professionalism, §§ 4.h., 6.b., 11.b.; SDCBA Attorney Code of Conduct, § II.F., III.B., III.G., III.N.) The subpoenas were sufficient to compel the doctors' attendance on the dates initially noticed for their depositions. If they failed to appear-as they indicated would be the case-then Defendants could have taken a notice of non-appearance, filed motions to compel their depositions, and filed an ex parte to advance those motions to compel at the expense of additional time, cost, and resources. Defendants instead extended the doctors a professional courtesy and moved the depositions to accommodate their schedules. There is no indication that Persails' counsel was unavailable on the new dates for these depositions. Under the circumstances, the motion to quash these depositions is denied.

As noted above, Dr. Knutson was not designated as a non-retained expert. Perasils argues that as a result, he will be excluded from testifying. Whether Dr. Knutson will be permitted to testify is beyond the scope of this motion, and the court expresses no opinion on that issue at this time.

For the reasons set forth above, the motion to quash is denied. The parties shall meet and confer with the doctors to find new mutually convenient dates for the seven depositions. The depositions shall be completed no later than May 24, 2024, absent agreement or further order of the court.

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