Judge: Malcolm Mackey, Case: 20STCV04034, Date: 2023-07-24 Tentative Ruling

Case Number: 20STCV04034    Hearing Date: July 24, 2023    Dept: 55

SANCHEZ v. GENERAL MOTORS LLC                                    20STCV04034

Hearing Date:  7/24/23,  Dept. 55

#4:   MOTION FOR AN ORDER EXCLUDING DEFENDANT GENERAL MOTORS LLC’S EXPERT WITNESS JAMES OAKS FROM TESTIFYING AT TRIAL, OR IN THE ALTERNATIVE, TO COMPEL THE DEPOSITION OF MR. OAKS.

Notice:  Okay  (per 6/8/23 minutes shortening time).

Opposition

MP:  Plaintiff

RP:  Defendant

Summary

On 1/31/20, Plaintiff filed a Lemon Law Complaint alleging that Plaintiff purchased new Defendant’s manufactured 2013 Chevrolet Silverado, having defects, including drive motor battery failure, and throttle system failure.

MP Positions

Moving party requests an order excluding Defendant’s expert witness from testifying, or compelling the expert’s deposition, on grounds including the following:

·         Defendant unreasonably failed to provide a date for its expert witnesses to be deposed.  CCP § 2034.300.

·         On May 3, 2023, Plaintiff noticed the deposition of GM’s expert witness, James Oaks, pursuant to CCP §2034.410, with the deposition set to take place on May 3, 2023. See, Exhibit “3.”

·         On May 11, 2023, Defendant served boilerplate objections and did not provide a new date for its expert’s deposition. See, Exhibit “4.”

·         On May 11, 2023, Plaintiff sent a meet and confer letter.

RP Positions

Opposing party advocates denying, for reasons including the following:

·         Plaintiff’s Counsel did not attempt to meet and confer.

·         Counsel misuses discovery motions to get trial continuances.

·         Plaintiff is seeking to impermissibly and improperly limit the scope of expert testimony in this case.

Tentative Ruling

Preliminarily, the Court inquires whether the expert’s deposition has been taken yet, making the motion moot.

The motion is granted.

“Code of Civil Procedure section 2034 .300 provides in part, ‘[T]he trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following: [¶] (a) List that witness as an expert under Section 2034.260. [¶] (b) Submit an expert witness declaration. [¶] (c) Produce reports and writings of expert witnesses under Section 2034.270. [¶] (d) Make that expert available for a deposition under Article 3….’ ”  Unzueta v. Akopyan (2019) 42 Cal. App. 5th 199, 219 n. 9.

“Failure to comply with expert designation rules may be found to be ‘unreasonable’ when a party's conduct gives the appearance of gamesmanship, such as undue rigidity in responding to expert scheduling issues.”   Staub v. Kiley (2014) 226 Cal.App.4th 1437, 1447  (“The record here does not support a determination that plaintiffs so unreasonably failed to timely disclose their experts that exclusion of all expert testimony was warranted. Neither plaintiffs nor their counsel engaged in actions that can be characterized as gamesmanship, nor did they engage in a ‘comprehensive attempt to thwart the opposition from legitimate and necessary discovery,…’”).