Judge: Michael E. Whitaker, Case: BC701398, Date: 2023-02-08 Tentative Ruling

Case Number: BC701398    Hearing Date: February 8, 2023    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 (Plaintiff) sued Defendant Lainie Kazan (Defendant) based on a motor vehicle collision.  Defendant moves to exclude the opinion of Plaintiff’s retained expert, Andrew Fox (Fox) from evidence at trial.  Defendant requests monetary sanctions in connection with the motion.  Plaintiff opposes the motion.  Defendant replies.   

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 had not appeared for deposition or produced the documents specified in the deposition notice.    

            In opposition, Plaintiff submits that Dr. Fox’s unavailability on a single date in February unilaterally selected by Defendant does not show that Plaintiff acted unreasonably.  Instead, the record reflects that Plaintiff’s counsel has repeatedly offered eight dates for Dr. Fox to be deposed, but Defendant’s counsel rejected each date.  Further, Dr. Fox is now currently holding February 20, 2023, at 1 P.M. for his deposition in this case.  Accordingly, there is no prejudice to Defendant in denying Defendant’s Motion to Exclude Dr. Fox.  (Declaration of Lindsay Burton, Exhibits 2-7.)

            In reply, Defendant argues that Plaintiff fails to explain why Dr. Fox was not deposed on the two previously agreed upon dates; let alone any of the other 6 dates that were noticed.  (Declaration of Edye A. Hill, Exhibits I-L, N.)  Defendant concludes that if the motion is denied Defendant will be severely prejudiced as she will be forced to depose Dr. Fox, have her neurological expert, Dr. Ludwig, re-deposed, and have her experts conduct a full analysis on the issues of medical damages and causation that was not anticipated. In addition, Dr. Ludwig will need time to evaluate Dr. Fox’s opinions.

In addition, Defendant requests that the Court set the Dr. Fox’s expert witness fee. As treating health care practitioners, Deponents are entitled to reasonable fees for their deposition testimony if Defendant will ask them “to express opinion testimony, including opinion or factual testimony regarding the past or present diagnosis or prognosis made by the practitioner or the reasons for a particular treatment decision made by the practitioner . . . .” (Code Civ. Proc., § 2034.430, subd. (a)(2).)  If a party seeks to depose an opposing party’s expert and contends that the expert’s fees is unreasonable, the deposing party may move for an order setting the compensation of that expert.  (Code Civ. Proc., § 2034.470, subd. (a).)  In connection with a motion to set the compensation of an opposing party’s expert, the moving party must provide a declaration showing a “reasonable and good faith attempt” to resolve the matter outside court.  (Code Civ. Proc., §§ 2016.040, 2034.470, subd. (b).) 

Here, the Court finds Defendant’s request flawed.  First, Defendant fails to establish how Dr. Fox’s expert witness fee is unreasonable.  The moving papers including the declaration of Evelyn Levine Solis is devoid of any specific information about the purported unreasonableness of Dr. Fox’s expert witness fee.  Second, Defendant fails to show that she met and conferred in a reasonable and good faith attempt to resolve any issue related to Dr. Fox’s expert witness fee.  The moving papers including the declaration of Evelyn Levine Solis is devoid of any specific information about the Defendant’s effort to meet and confer with Plaintiff concerning Dr. Fox’s expert witness fee. 

CONCLUSION AND ORDER

Based upon the record before the Court, the Court concludes that Plaintiff did not fail to make Dr. Fox available for deposition and finds that the imposition of monetary sanctions against Plaintiff and/or Plaintiff’s counsel of record would be unjust. 

Accordingly, the Court denies Defendant’s motion to exclude Dr. Fox as an expert witness at the trial and orders Plaintiff to make Dr. Fox available for deposition on February 20, 2023 at 1:00 P.M., or on any alternative date as agreed to by the parties in advance of the trial. [1]