Judge: Michael E. Whitaker, Case: 19STCV00938, Date: 2022-07-25 Tentative Ruling

Case Number: 19STCV00938    Hearing Date: July 25, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Roberto Vasquez sued defendant Lawrence Lee Duran based on a motor vehicle collision.  Defendant and non-party Steven Miller (“Miller”) (collectively, “Movants”) move separately for a protective order precluding Plaintiff from deposing Miller.  Movants also request monetary sanctions. Plaintiff opposes the motions.

ANALYSIS

“The court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.”  (Code Civ. Proc., §§ 2030.090, subd. (b); 2033.080, subd. (b).)   The protective order may include direction that the subject discovery request need not be answered.  (Code Civ. Proc., §§ 2030.090, subd. (b)(1); 2033.080, subd. (b)(1).)  A party seeking a protective order must show good cause for issuance of the order by a preponderance of the evidence.  (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145.) 

Here, Movants argue a protective order is warranted because Plaintiff served his deposition notice on Miller, who is neither a retained expert, non-retained expert, nor percipient witness, after the applicable discovery cut-off date.  In opposition, Plaintiff contends that Miller possesses relevant, discoverable information concerning the litigation-derived income of Defendant’s retained expert, Dr. Douglas Kiester (“Kiester”), and thus his deposition falls within the rules governing expert discovery rather than non-expert discovery, as Movants suggest.

According to the Court’s most recent Minute Order concerning trial and all related pre-trial motion and discovery cutoffs in this case, all non-expert discovery remains closed based on the prior trial date of October 13, 2021.  (See July 7, 2022 Minute Order; September 22, 2021 Stipulation; and July 26, 2021 Order and Stipulation to Continue Trial.)  The cutoff for all non-expert discovery and related pre-trial motions was therefore September 13, 2021.  (Code Civ. Proc., § 2024.020, subd. (a).)  Plaintiff served the subject deposition subpoena on Plaintiff on December 28, 2021, and on Miller on January 4, 2022.  (Declaration of Virginia Lopez, ¶¶ 11-12, Exhibit F; Declaration of Eliot B. Guterson, ¶ 3, Exhibit 2.) 

Plaintiff points to Code of Civil Procedure section 2034.410 to assert that any expert disclosed by a party may be deposed by the opposing party.  Plaintiff is correct.  Per Code of Civil Procedure section 2034.410, “[o]n receipt of an expert witness list from a party, any other party may take the deposition of any person on the list.”  (Code Civ. Proc., § 2034.410.)  But Plaintiff does not establish that Miller is “a person on the list” subject to deposition under Section 2034.410. 

Instead, Plaintiff points to Kiester’s deposition testimony, in which Kiester states that he is unaware of what he charges for his services and what he has received in compensation for his services related to this case and others.  (Declaration of Hazel S. Chang, Exhibit 1 pp. 55-6, 58.)  According to Kiester, Miller pays Kiester monthly based on their personal arrangement without indicating to Kiester the source or amount of fees received.  (Ibid.)  Plaintiff therefore asserts that Miller’s deposition is appropriate and within the scope of expert discovery under Evidence Code section 722.  Evidence Code section 722 provides, “[t]he compensation and expenses paid or to be paid to an expert witness by the party calling him is a proper subject of inquiry by any adverse party as relevant to the credibility of the witness and the weight of this testimony.” (Evid. Code, § 722, subd. (b).)  It would thus appear that Plaintiff’s subpoena to depose Miller is proper.

Moving Parties argue that Plaintiff received a copy of Kiester’s billings for his professional services related to this action in connection with the production of Kiester’s case file.  (Declaration of Eliot B. Gutereson, ¶ 12, Exhibit 10.)  But, as revealed during his deposition, Kiester is unable to authenticate or verify said billings as Miller is the individual who handles all billings on Kiester’s behalf.  Because the Court finds that the scope and matter of Miller’s deposition falls within the ambit of expert discovery, and that Moving Parties have not otherwise demonstrated that the proposed deposition would result in unwarranted annoyance, embarrassment, or oppression, or undue burden and expense, the Court denies the motions for protective orders.  Moving Parties are free to assert any further objections based on privacy, privilege, and so on as necessary during the deposition.

Both parties seek monetary sanctions in connection with the motion.  The Court declines to impose sanctions on either party as it finds an award of sanctions to either party to be unjust in this instance.  (Code of Civil Procedure, section 2023.030, subdivision (a).)  The Court finds the parties had a good faith dispute as to the propriety of the subject subpoena, and neither party has acted in bad faith.

Moving Defendants shall provide notice of the Court’s ruling and file a proof of service of such.