Judge: Michael E. Whitaker, Case: 19STCV42602, Date: 2022-12-19 Tentative Ruling

Case Number: 19STCV42602    Hearing Date: December 19, 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 Sophia Velasco (“Plaintiff”) moves to compel the depositions of Defendants George Mirabal and Elizabeth Mirabal’s (collectively “Defendants”) experts Philip S. Wang MSME and Jeffrey I. Korchek, M.D. (collectively “Defendants’ experts”). Plaintiff also seeks $2,510.00 in monetary sanctions against Defendants and their counsel of record.

            Defendants oppose the motion and seek $961.02 in monetary sanctions against Plaintiff and her counsel of record.  Plaintiff replies. 

ANALYSIS

            “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.”  (Code Civ. Proc., § 2025.450, subd. (a).)

Here, on April 27, 2022, Plaintiff served deposition notices on Defendants’ experts. (Crippen Decl. Ex. 1.) On May 5, 2022, Defendants sent an email saying their experts were not available. (Id. Ex. 2.) On June 9, 2022, Plaintiff served deposition notices again. (Id. Ex. 3.) On June 23, 2022, Plaintiff took the depositions off calendar and asked for more dates. (Id. Ex. 4.) On September 19, 2022, Defendants served their expert designation naming Defendants’ experts as expert witnesses. (Id. Ex. 5.) On October 27, 2022, Plaintiff sent an email asking for Defendants’ experts availability. (Id. Ex. 6.) On October 31, 2022, Plaintiff again asked for more dates and Defendants only gave one date for Dr. Wang and no dates for Dr. Korchek. (Id. Ex. 7.)

Defendants oppose the motion for several reasons: (1) timeliness; (2) failure to re-notice of depositions; (3) lack of statutory authority; and (4) failure to meet and confer.

First, the Court agrees that the motion is untimely. Pursuant to Code of Civil Procedure section 2024.030, expert discovery must be heard on or before the tenth day before trial. Here, trial is scheduled for February 10, 2023. However, the Court noted several times that discovery is closed. (Hsu Decl. Ex. B-C.) Discovery is now closed. Plaintiff has not otherwise properly sought to reopen discovery. In making this ruling, the Court rejects Plaintiff’s arguments in Reply. The June 8, 2022 stipulation does not expressly allow for completion of expert discovery in the event of future continuances of trial. The Court ordered expert discovery was due based on the November 7, 2022 trial date. Plaintiff did not complete discovery by that date and future continuances expressly ordered that discovery was closed.

Second, the Court agrees that Plaintiff unilaterally took the depositions off calendar. Defendants’ experts did not fail to appear because the depositions were cancelled by Plaintiff. Plaintiff needed to serve new deposition notices before making this motion.

Third, the Court agrees that there is no statutory authority to order a retained expert to appear for a deposition. Code of Civil Procedure section 2025.450, subdivision (a) refers to certain individuals, not retained experts. Code of Civil Procedure section 2034.460 requires a party to produce an expert for deposition upon “service of a proper deposition notice” but does not include a provision authorizing the Court to compel the deposition if the party does not produce the expert. This Court is not the trial court and is otherwise not in the appropriate position to rule on Plaintiff’s request to preclude Defendants’ experts from trial pursuant to Code of Civil Procedure section 2034.300.

Based on the above, the Court does not need to examine whether the meet and confer was proper.

Regarding monetary sanctions, both parties seek monetary sanctions against each other. The Court denies Plaintiff’s request because the Court denies her motion. The Court denies Defendants’ request because the Court finds that Plaintiff acted with substantial justification, even though counsel did so on a misapplication of the Discovery Act.

CONCLUSION AND ORDER

            Therefore, the Court denies the motion and denies the parties’ requests for monetary sanctions against each other.

Plaintiff is ordered to provide notice of the Court’s order and file a proof of service of such.