Judge: Michael E. Whitaker, Case: BC701398, Date: 2022-09-19 Tentative Ruling

Case Number: BC701398    Hearing Date: September 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 Roxana Portillo-Choto sued defendant Lainie Kazan based on a motor vehicle collision.  Defendant moves to exclude the opinion of Plaintiff’s retained expert, Andrew Fox (“Fox”) from evidence at trial.  In the alternative, Defendant moves to compel Plaintiff to produce Fox for deposition, set Fox’s expert witness fee, and continue trial.  Defendant also requests monetary sanctions.  Plaintiff has not filed an opposition to the motion.   

            The Court notes that Defendants filed a single, combined motion to exclude Plaintiff’s retained expert from testifying at trial, to set Fox’s expert witness fee, and to continue trial.  Instead, Defendant should have filed a separate motion as to each form of requested relief for a total of three motions.  The Court will therefore order Defendant to pay an additional $120 in filing fees. (Gov. Code, § 70617, subd. (a).)

            Further, the Court notes that, as of the hearing date on the motion, discovery is closed.  Accordingly, Defendant must first move to reopen discovery to compel Fox’s appearance for deposition and set his expert witness fee.  Because Defendant has made no such motion, the Court declines to consider Defendant’s alternatively requested relief, and only considers the motion to exclude Fox’s expert testimony at trial.

ANALYSIS

Under Code of Civil Procedure section 2034.300, “[O]n objection of any party who has made a complete and timely compliance with Section 2034.260, the 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:

1. List that witness as an expert under Section 2034.260.

2. Submit an expert witness declaration.

3. Product reports and writings of expert witnesses under Section 2034.270.

4. Make that expert available for a deposition under Article 3 (commencing with Section 2034.410).” 

    

(Code Civ. Proc., § 2034.300, subds. (a), (b).) 

            Here, Defendant served notice of Fox’s deposition on Plaintiff on January 31, 2022.  Defendant noticed Fox’s deposition for February 15, 2022.  According to counsel for Defendant, Evelyn Levine Solis (“Solis”), counsel for Plaintiff immediately advised that Fox’s deposition would need to be rescheduled for an alternative date.  (Declaration of Evelyn Levine Solis, ¶ 6.)  Solis states that she then provided alternative dates for Fox’s deposition, but received no proposed dates or confirmations from Plaintiff’s counsel.  (Declaration of Evelyn Levine Solis, ¶ 7.)  As of the filing date of the motion, Fox has not appeared for deposition or produced the documents specified in the deposition notice.    

            Consequently, the Court finds Plaintiff has unreasonably failed to make Fox available for deposition, and his expert opinion must be excluded from evidence at trial.

CONCLUSION AND ORDER

Therefore, the Court grants Defendant’s motion to exclude the opinion of Fox from evidence at trial per Code of Civil Procedure section 2034.300. 

In addition, the Court orders Defendant to pay an additional $120 in filing fees to the Clerk of the Court on or before October 21, 2022.

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